Opinion
CLAIM NO. F707202
OPINION FILED OCTOBER 14, 2011
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GLENN LOVETT, JR., Attorney at Law, Jonesboro, Arkansas.
Respondent represented by the HONORABLE JARROD S. PARRISH, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an administrative law judge's amended opinion filed June 27, 2011. The administrative law judge found that the claimant was entitled to temporary total disability benefits beginning May 12, 2009. The administrative law judge found that a kyphoplasty procedure recommended by Dr. Tonymon was reasonably necessary. After reviewing the entire record de novo, the Full Commission reverses the administrative law judge's opinion. The Full Commission finds that the claimant did not prove a kyphoplasty procedure was reasonably necessary. We find that the claimant did not prove he was entitled to additional temporary total disability benefits.
I. HISTORY
The record indicates that Andrew Vincent, age 48, complained of pain in his thoracic and lumbar area following a motor vehicle accident in August 1994. The claimant was assessed with "Low back pain/strain, XR of upper T, lower L reveals normal bone ht, normal disc space, no frac. or dislocation."
The claimant testified that he became employed as a quality control inspector with the respondent-employer in March 2006. The claimant's testimony indicated that his work for the respondents sometimes required manual labor. The parties stipulated that the employment relationship existed at all pertinent times, including May 31, 2007. The claimant testified that while attempting to stop a pipe from rolling, "I stuck my arm out like that (indicating) and leaned into it, and when the pipe contacted my arm, my back snapped, kind of popped. . . . I felt just a little twinge, but about 15 or 20 minutes later, my back really started hurting."
The claimant testified that he did not work for the respondents or any other employer after May 31, 2007. The claimant was seen at a medical clinic on June 4, 2007. The claimant complained of pain in his middle back beginning the previous Wednesday, following a "pop" in the claimant's back at work. A handwritten note indicated that the claimant was diagnosed with thoracic strain. An x-ray of the claimant's dorsal spine was done on June 4, 2007, with the findings, "The alignment, joint space, and height is pretty well maintained with some minimal spurring. I don't see any acute bony abnormality. IMPRESSION: No acute bony abnormality." Dr. Dale Lockhert signed a Health Care Provider Certification on or about June 4, 2007 and indicated that the claimant was to remain off work until August 20, 2007.
An x-ray of the claimant's chest was done on June 8, 2007, with the following findings:
PA and lateral chest demonstrates normal cardiac silhouette and mediastinum. No consolidating infiltrates, pleural effusion, or pneumothorax identified. Visualized osseous structures demonstrate ill defined superior endplate of the mid thoracic vertebral body suggestive of compression fracture, age indeterminate. Please correlate with patient's history and MRI can be performed if indicated.
IMPRESSION:
1. NO RADIOGRAPHIC EVIDENCE OF ACUTE CARDIOPULMONARY PROCESS DETECTED.
2. COMPRESSION FRACTURE OF THE SUPERIOR ENDPLATE OF THE MID THORACIC VERTEBRAL BODY OF INDETERMINATE AGE.
PLEASE CORRELATE WITH PATIENT'S HISTORY AND IF INDICATED, FURTHER IMAGING WITH MRI OF THE THORACIC SPINE RECOMMENDED.
An MRI of the claimant's thoracic spine was performed on August 8, 2007, with the following impression:
1. Mild to moderate compression fracture of T7 and T8 appearing subacute to old versus large Schmorl's nodes involving the T7 and T8 vertebral bodies.
2. No significant bulging or herniated disc is appreciated.
3. Early degenerative arthritis.
4. Axial images are less than optimal.
A CT of the claimant's thoracic spine was performed on August 14, 2007, with the following impression:
1. Estimated T6 and T7 level Schmorl's node defects along the superior endplates without evidence of an associated acute or subacute dorsal vertebral fracture at these levels.
2. Mid dorsal facet degenerative changes of mild degree.
Dr. Lockhert signed a Doctor's Supplementary Certificate on August 20, 2007 and indicated that the claimant could return to work on September 20, 2007.
Dr. Kee B. Park noted on September 5, 2007, "Mr. Vincent is a 44-year-old male who reports on June 31, 2007 he was trying to stop a rolling pipe with his arms and felt a pop in his back. He experienced severe pain in his midback. He has been diagnosed with T7-8 compression fracture and was referred to see me. . . . MRI of the thoracic spine shows T7-8 Schmorl's node with T8 superior endplate compression which is mild. ASSESSMENT/PLAN: Mr. Vincent has T8 superior endplate fracture which is mild. This has not improved over the last couple of months. In order to facilitate the healing of the fracture I have placed him in a TLSO brace and will see him back in the office in four weeks."
Dr. Park noted on October 10, 2007, "The patient reports no improvement of his thoracic pain even with the brace. At this point I will have him undergo physical therapy x 3 weeks and reassess him at that time. Will keep him off work for four more weeks. Will see him back with CT Scan to assess his T7-8 compression fracture."
Dr. Park reported on November 28, 2007, "CT Scan of the thoracic spine was obtained in axial views with sagittal and coronal reconstructions. This reveals some degenerative changes diffusely. At T7-8 level there is evidence of a large Schmorl's node with vacuum disc suggesting collapse of the endplate at T7-8." Dr. Park further noted on November 28, 2007, "Mr. Vincent's CT scan shows a T7-8 large Schmorl's node with vaccum disc. This is consistent with traumatic injury to the T7-8 disc. He has not improved over the last six months. At this time I have offered him a T7-8 posterior fusion with instrumentation. He will let me know when he wants to proceed."
The claimant testified that the respondents did not approve surgery recommended by Dr. Park. A pre-hearing order was filed on July 29, 2008. The parties agreed to litigate the issues of compensability, medical treatment, temporary total disability benefits from June 1, 2007 to a date to be determined, and fees for legal services.
On October 21, 2008, Dr. Lockhert answered a questionnaire provided by the claimant's attorney and opined that the claimant's back problems were caused by the work-related injury described by the claimant. Dr. Lockhert wrote that the claimant was "Unable to bend or lift secondary to back pain."
On November 5, 2008, Dr. Park answered a questionnaire provided by the claimant's attorney. Dr. Park basically indicated that the T7-8 Schmorl's node with superior endplate fracture was consistent with the May 31, 2007 compensable injury. Dr. Park described the claimant's work restrictions: "Patient was restricted 10-10-07 on an unable to do any type of work basis, patient was offered T7-8 posterior fusion w/instrumentation on his 11-28-07 office visit. Patient was to contact the office if he wanted to proceed w/T7-8 posterior fusion, but we still have not heard from the patient as of 11-28-07."
Dr. Brent Sprinkle provided a Record Review on January 22, 2009:
This is a record review done at the request of attorney, Jerrod Parrish with Worley, Wood and Parrish Law Offices.
The question raised before me is if the injury described above T7 and T8 compression fracture versus large schmorl's node is consistent with the accident of reaching the front of your body from a standing position.
1. Regarding the specific question, the MRI report describes mild to moderate compression fracture at T7 and T8 appearing subacute to old versus large schmorl's nodes involving the T7 and T8 vertebral bodies. This MRI was dated 08/08/07. According to the records the injury date must have been 05/31/07 so this MRI would have been done just a little over two months after the injury.
If there would have been an acute compression fracture from the injury date of 05/31/07 the MRI pattern would most likely have been far more definitely in relating this as an acute fracture. Further, the CT scan done 08/14/07 describes a T6 and T7 schmorl's node without evidence of an associated acute or subacute vertebral fracture, so based on the MRI description and CT description I would conclude within a reasonable degree of medical certainty that there has not been a T7 or T8 compression fracture. I think the schmorl's nodes and the vacuum disc phenomena are far more likely pre-existing prior to this injury. I do not think this injury would produce a severe or large schmorl's node and I can say this within a reasonable degree of medical certainty. Also the CT report describes sclerotic changes along the bony margin of the area of presumed disc invagination in the region of the schmorl's node and sclerotic changes suggest to me this is a more chronic finding and strengthens my opinion that the schmorl's nodes were present prior to this patient bending forward to grab a pipe with one hand. I have reviewed the video example of this and in reviewing this demonstration I think it is highly unlikely that that type of event would produce a severe acute schmorl's node, or compression fracture.
2. The next question is would a posterior fusion with instrumentation be a reasonable and necessary treatment for the condition described above. You may consider that treatment for a compression fracture, however that is rarely recommended. To consider instrumentation and fusion you would not be able to justify, in my opinion, that treatment based on compression fractures because I do not think they exist here. A fusion is sometimes considered on the basis of degenerative disc disease which could be a consideration as a last resort if all conservative options are pursued but again I think the degenerative changes described at T7-8 were present prior to this injury event.
On March 29, 2009, an administrative law judge signed anAgreed Order submitted by the parties. The Agreed Order stated, among other things, "3. Claimant's back injury suffered May 31, 2007, which has been diagnosed by Dr. Kee Park, M.D. as a T7-8 Schmorl's node with superior endplate fracture and vacuum disc, is found to be a compensable injury under the Act, and effective February 27, 2009, Respondents shall commence paying temporary total disability benefits to Claimant at the stipulated rate of $307.00 per week, which payments shall continue for so long as Claimant is entitled to same under the Arkansas Workers' Compensation Act."
The claimant testified that he began receiving temporary total disability benefits following entry of the Agreed Order. The March 29, 2009 Agreed Order also provided, "6. Respondents shall choose a neurosurgeon to treat Claimant in this case, and shall provide medical benefits to Claimant as required by the Arkansas Workers' Compensation Act."
Dr. James R. Feild, a neurological surgeon, examined the claimant on April 20, 2009:
This patient injured himself 5-31-2007 working at a factory. He was working around a 450 pound pipe which was about to roll into a co-worker and he reached his arm out and developed some pain in his back between his shoulder blades. . . .
He went home and eventually had x-rays of his ribs and his spine which show a T7-T8 compression fracture caused by Schmorl's nodes. The pain is in the mid thoracic area and in the right rib cage about the T7-T8 area. . . . He has not worked since the injury and says he can't work because when he tries to pick up something he has pain between his shoulders. He evidently was released from medical care somewhere around November of 2007. He was not rehired except full time and there were restrictions on his work. The issue now is to what should be done, whether it should be surgically treated or medically treated. Some have suggested physical therapy which he has not tried. . . .
EXAMINATION: The twisting and bending of his back is limited 25 to 30% by pain. He is tender in the interthoracic area over the T7 to 8 vertebrae. His long tracts are working normally. He does have atrophy of the interosseous muscles, more on the left than the right. I am unable to feel his ulnar nerves. . . .
Review of MRI scans and CT scans shows Schmorl's nodes at T6-7. I do not see an anterior wedging. The vertebrae appear on these discs to be structurally sound.
Dr. Feild's impression was "Schmorl's nodes T7-T8 advanced for age 45. Probable bilateral ulnar neuropathy compression at the elbow versus motoneuron disease such as [ALS] since the patient has lost 50 pounds or a diabetic progressive neuropathy."
Dr. Feild corresponded with counsel for the respondents on April 24, 2009:
Thank you for sending Mr. Andrew Vincent.
He has no neurological findings clinically. He does have the pain as described. He has the T7-T8 compression fractures as a result of Schmorl's nodes. The word fracture is used usually in descriptive terms describing the rupture of the disc into the vertebral body and this is called a fracture. However, there were no fracture lines seen on his CT scan in 2007 and there is no evidence that he had a compression fracture. As the disc ruptures into the vertebral body, it "fractures" the end plate. This is frequently a spontaneous natural event as the spine ages and is associated with discomfort in and about the spine. In Mr. Vincent's case, the bone density revealed osteopenia which made his bones more at risk because of lack of calcium deposition to this sort of thing. His weight and his job and his general physical activity probably summated to cause the rupture through the end plate into the bone. These types of Schmorl's nodes rupturing into the vertebral body are not common in people that have normal bone density. Mr. Vincent does not.
There is no threat to the spinal canal. There is no dislocation, subluxation or movement of the bones of the spine. His only symptom is pain. Pain up and down the spine cannot be relieved by operating upon the spine. I would not recommend any surgery, fusion, decompression, bone grafting, plates or screws, etc. in this patient.
At this point I think Mr. Vincent can find him a job that he can do and will be happy with if such is available.
I do not agree that his injury and the development of his symptoms as he has described herein have disabled him for life. At this point he has pain and suffering and aggravation of a pre-existing, on-going spinal condition that probably will develop in other places such as his lumbar spine. His twisting, lifting and bending did not cause the pain that will disable him from working for life. I would account this as pain and suffering and aggravation of a pre-existing condition and would recommend to him that he settle his case and go back to work.
On May 1, 2009, Dr. Feild answered a questionnaire provided by the respondents and indicated "Yes" to the question, "1. Has Andrew Vincent reached maximum medical improvement in association with his May 31, 2007 injury?" Dr. Feild opined that the claimant had not sustained any permanent partial impairment. The respondents apparently stopped paying temporary total disability benefits effective May 12, 2009.
The record contains a Change of Physician Order dated December 7, 2009: "A change of physician is hereby approved by the Arkansas Workers' Compensation Commission for Andrew J. Vincent to change from Dr. James Feild to Dr. Kenneth Tonymon[.]"
The claimant began treating with Dr. Tonymon on February 16, 2010:
46 year old Caucasian male seen in consultation at request of Arkansas Workers' Compensation Commission for complaints of thoracic spine pain.
Patient was working on 5-30-2007 when he put his left arm out in front of him to stop a rolling pipe; he was bending slightly forward at the waist. He abruptly stopped the pipe with his hand when he "felt heard a pop in my middle back." Reports the pain to his middle back has increased over time and the pain has increased in intensity. . . .
Dr. Tonymon's assessment was "1. T8 superior endplate fracture which by history resulted from an on the job injury. 2. Persistent thoracic interscapular spine pain. 3. Osteopenia from bone density study on 8-8-07; T score (-1.5). 4. Type II Diabetes Mellitus." Dr. Tonymon planned additional diagnostic testing.
A CT of the claimant's thoracic spine was done on May 21, 2010, with the following findings:
There is a subtle lateral curvature of the thoracic spine convex toward the right. Mild chronic compression deformity at T7 and T8 with chronic Schmorl's nodes. A chronic Schmorl's node involves the superior endplate of T7 and the superior endplate of T8. There is some degenerative disc change at T10-T11 with some calcification of the periphery of the disc. No clear acute appearing fracture can be discerned. No paravertebral mass is detected.
OPINION:
Chronic changes described above.
Additionally, an MRI of the claimant's thoracic spine was performed on May 21, 2010, with the opinion, "Mild chronic vertebral body compression deformity at T7 and T8 with Schmorl's nodes that also appear chronic at T7 and T8."
Dr. Tonymon assessed the following on or about June 22, 2010: "1. T8 central superior endplate fracture which by history resulted from an on the job injury (8.6mm deep). 2. T7 superior endplate fracture (6.1mm). 3. Unable to pursue gainful employment at this time. 4. Osteopenia from bone density study on 8-3-07; T score (-1.5). 4. Type II diabetes mellitus." Dr. Tonymon's plan included T7/T8 kyphoplasties and a bone density study. Dr. Tonymon also indicated that the claimant was to "3. Remain off work until seen at post-op visit."
Dr. Tonymon signed a Certificate To Remain Off Work: "This is to verify that Andrew Vincent was seen in my office on June 22, 2010. He is currently being scheduled for T7 and T8 kyphoplasties @ The Surgical Hospital of Jonesboro. Mr. Vincent is to remain off work until seen back in my office for his post-operative appointment. This appointment will be made when his surgery has been scheduled."
Dr. Feild corresponded with the respondents' attorney on July 27, 2010:
In answer to your questions regarding Mr. Andrew Vincent in your letter of 7-15-10, "provide your opinion as to whether or not this treatment is reasonable and necessary in relation to Claimant's work-related injury," (kyphoplasty).
Kyphoplasties work better when they are done in the acute phase. It has been a little over three years since this patient injured his back and the odds of the kyphoplasty helping are much reduced and probably not worth doing.
You also requested "please provide your opinion as to whether or not Claimant should be restricted from working." I do not think so. In the letter that I sent you on April 24, 2009, indicated I felt that he could work. . . .
The respondents' attorney informed the claimant's attorney on August 18, 2010, "Respondents are not approving the kyphoplasty procedure as it is not reasonable and necessary in connection with Claimant's work related incident."
A pre-hearing order was filed on December 13, 2010. The claimant contended that he was "entitled to such medical services and supplies as are reasonably necessary in connection with his injury, including surgery to his back as recommended by Dr. Kenneth Tonymon and by Dr. Kee Park, M.D., as well as compensation for temporary total disability from the date Respondents discontinued payment of same in May of 2009 until an undetermined date in the future, and that Respondents are liable for attorney's fees based upon their controversion."
The respondents contended that "all reasonable and necessary medical treatment has been provided to date. Dr. Rodney Feild has evaluated the claimant and opined that additional medical treatment is not necessary to treat claimant's condition. Additionally, the medical does not support claimant's claim for additional medical or indemnity benefits. Claimant reached maximum medical improvement no later than April 24, 2009."
The parties agreed to litigate the issues of "additional temporary total disability benefits — subsequent to May 2009, additional medical treatment, controversion, and controverted attorney's fees."
On December 30, 2010, Dr. Tonymon answered a questionnaire prepared by the claimant's attorney on December 3, 2010. Dr. Tonymon opined that the claimant's thoracic abnormalities were consistent with having been caused by the May 31, 2007 compensable injury. Dr. Tonymon opined that the kyphoplasties he had recommended were reasonably necessary. Dr. Tonymon opined that the claimant was unable to pursue gainful employment as a result of the claimant's injuries.
Respondents' Exhibit Two includes contains a number of "Myspace/Facebook" photos and messages attributed to the claimant, entitled "Drew's Stream." Printed by the respondents on February 3, 2011, "Drew's Stream" includes a series of messages such as, "Looks like a gorgeous day outside. Think I'm fixin' to head to the gym for some cardio, then go and enjoy the weather." Another entry states, "Geez, why is it sooo hard to get back into going to the gym??? Took off for a couple of weeks after New Years, now it's like pulling teeth to go back." Other entries from "Drew's Stream" indicated that the claimant was employed and was working out. A photo dated December 26, 2009 showed the claimant standing and holding a pool cue.
A hearing was held on March 25, 2011. The claimant testified that he was not employed and stated, "I have back problems, and a Schmorl's node, and two fractured vertebrae causing me quite a bit of pain. I cannot sit or stand for very long. I'm in quite a bit of pain now." The claimant testified regarding the Myspace postings wherein the claimant stated that he was employed, "That was about a foolish attempt to regain a love that I had that I lost a couple of years ago. She broke up with me because I didn't have a job. . . . I just thought maybe that was a way of getting back in contact with her, maybe getting something going." The claimant testified that he had not worked for any employer since his compensable injury.
An administrative law judge filed an opinion on June 14, 2011. The administrative law judge found, among other things, that the medical procedure recommended by Dr. Tonymon was reasonably necessary. The administrative law judge filed an amended opinion on June 27, 2011 and found that the claimant was entitled to temporary total disability benefits "for the period commencing May 12, 2009, and continuing through the end of the claimant's healing period, as a result of the compensable injury of May 31, 2007[.]"
The respondents appeal to the Full Commission.
II. ADJUDICATION
A. Medical Treatment
The employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a) (Repl. 2002). The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary. Stone v. Dollar Gen. Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005). Preponderance of the evidence means the evidence having greater weight or convincing force. Metropolitan Nat'l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Hamilton v. Gregory Trucking Co., 90 Ark. App. 248, 205 S.W.3d 181 (2005).
An administrative law judge found in the present matter, "5. The medical procedure recommended by Dr. Kenneth Tonymon in the treatment of the claimant's May 31, 2007, compensable injury is reasonably necessary in connection with the treatment of the compensable injury." The Full Commission does not affirm this finding. The parties have stipulated that the claimant sustained a compensable back injury on May 31, 2007. The claimant testified that he felt a pop in his back and a "twinge" in a work-related incident involving a large pipe. The claimant was diagnosed with thoracic strain on June 4, 2007.
An x-ray on June 4, 2007 showed no acute bony abnormality in the claimant's dorsal (thoracic) spine. However, an x-ray on June 8, 2007 demonstrated a compression fracture of the superior endplate of the mid-thoracic vertebral body. The impression from an MRI of the claimant's thoracic spine on August 8, 2007 included a compression fracture of T7 and T8. A CT of the claimant's thoracic spine on August 14, 2007 showed "Schmorl's node defects" at T6 and T7. Dr. Park began treating the claimant on September 5, 2007 and assessed "T8 superior endplate fracture which is mild." Dr. Park eventually recommended a "T7-8 posterior fusion with instrumentation." The claimant testified that the respondents did not approve this proposed treatment. Dr. Park reported in November 2008 that the claimant had not contacted him since November 2007. The claimant testified that Dr. Park subsequently relocated to another country and never performed the proposed surgery.
Dr. Sprinkle reviewed the medical records for the respondents and concluded on January 22, 2009 that "there has not been a T7 or T8 compression fracture." Dr. Sprinkle informed the respondents, "To consider instrumentation and fusion you would not be able to justify, in my opinion, that treatment based on compression fractures because I do not think they exist here." The parties submitted an Agreed Order on March 29, 2009 which provided that the respondents would choose a neurosurgeon to treat the claimant. Dr. Feild, a neurological surgeon, examined the claimant and reported on April 24, 2009, "He has no neurological findings clinically. He does have the pain as described. He has the T7-T8 compression fractures as a result of Schmorl's nodes. . . . There is no threat to the spinal canal. There is no dislocation, subluxation or movement of the bones of the spine. His only symptom is pain. Pain up and down the spine cannot be relieved by operating upon the spine. I would not recommend any surgery, fusion, decompression, bone grafting, plates or screws, etc. in this patient."
The claimant obtained a change of physician to Dr. Tonymon. Dr. Tonymon's assessment on February 16, 2010 included "T8 superior endplate fracture which by history resulted from an on the job injury." A CT of the claimant's thoracic spine was performed on May 21, 2010. The CT on May 21, 2010 showed "Mild chronic compression deformity at T7 and T8 with chronic Schmorl's nodes." It was noted, however, that "No clear acute appearing fracture can be discerned." Nevertheless, Dr. Tonymon stated on June 22, 2010 that superior endplate fractures were shown at T7 and T8. Dr. Tonymon planned to perform "T7 and T8 kyphoplasties." However, Dr. Feild informed the respondents on July 27, 2010, "Kyphoplasties work better when they are done in the acute phase. It has been a little over three years since this patient injured his back and the odds of the kyphoplasty helping are much reduced and probably not worth doing." Dr. Tonymon informed the claimant's attorney on December 30, 2010 that he believed the kyphoplasty procedure was reasonably necessary.
It is within the Commission's province to weigh all of the medical evidence and to determine what is most credible. Minnesota Mining Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). In the present matter, the Full Commission finds that the opinions of Dr. Sprinkle and Dr. Feild are entitled to more significant evidentiary weight than the opinion of Dr. Tonymon. Dr. Sprinkle credibly opined that surgery would not benefit the claimant. Dr. Feild, a neurological surgeon who reviewed the medical reports and physically examined the claimant, opined that he would not recommend any type of surgery. Dr. Feild specifically opined that a kyphoplasty recommended by Dr. Tonymon would not relieve the claimant's pain or otherwise be of any benefit to the claimant. The Full Commission finds that the claimant did not prove a kyphoplasty procedure was reasonably necessary in connection with the claimant's compensable injury.
B. Temporary Disability
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). "Healing period" means "that period for healing of an injury resulting from an accident." Ark. Code Ann. § 11-9-102(12). If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). Conversely, the healing period has not ended so long as treatment is administered for healing and alleviation of the condition. Id.
An administrative law judge determined in the present matter that the claimant was entitled to temporary total disability benefits beginning May 12, 2009. The Full Commission does not affirm this finding. We have discussed and analyzed the medical records in this case at length. The claimant was diagnosed with a thoracic strain following a compensable injury on May 31, 2009. Dr. Park and Dr. Tonymon recommended surgical treatment, whereas Dr. Sprinkle and Dr. Feild stated that surgery would provide the claimant no benefit. Dr. Feild opined on May 1, 2009 that the claimant had reached maximum medical improvement with regard to the May 31, 2007 compensable injury. The respondents stopped paying temporary total disability benefits effective May 12, 2009.
The Full Commission finds that the claimant reached the end of his healing period for the compensable thoracic strain no later than May 1, 2009, the date Dr. Feild assessed maximum medical improvement. We recognize Dr. Tonymon's statement on June 22, 2010 that the claimant was "unable to pursue gainful employment at this time." The Full Commission finds that the opinion of Dr. Feild is entitled to more evidentiary weight than the opinion of Dr. Tonymon. We find that the claimant did not prove he was entitled to additional temporary total disability benefits beyond May 12, 2009.
Based on our de novo review of the entire record, the Full Commission finds that the claimant did not prove a kyphoplasty procedure recommended by Dr. Tonymon was reasonably necessary in connection with the compensable injury. We find that the claimant did not prove he was entitled to additional temporary total disability benefits after May 12, 2009. The Full Commission reverses the administrative law judge's opinion, and this claim is denied and dismissed.
IT IS SO ORDERED.
___________________________________ A. WATSON BELL, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner
DISSENTING OPINION
I must respectfully dissent from the majority opinion. After ade novo review of the record, I would award the kyphoplasty procedure as reasonably necessary medical treatment. I would also award the claimant additional temporary total disability benefits.
Reasonably Necessary Medical Treatment
In workers' compensation law, an employer takes the employee as he finds him, and employment circumstances that aggravate pre-existing conditions are compensable. Heritage Baptist Temple v. Robison, 62 Ark. App. 460, 120 S.W.3d 150 (2003). Here, the compensability of the claimant's May 31, 2007 back injury is not disputed. The claimant sustained compression fractures at the T7-T8 levels of his back while attempting to stop a large pipe from hitting a co-worker.
The Workers' Compensation Act requires employers to provide such medical services as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a) (Repl. 2002). Injured employees must prove that medical services are reasonably necessary by a preponderance of the evidence; however, those services may include that necessary to accurately diagnose the nature and extent of the compensable injury; to reduce or alleviate 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. Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2002); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); SeeArtex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983). The Court of Appeals has noted that even if the healing period has ended, a claimant may be entitled to ongoing medical treatment if the treatment is geared toward management of the claimant's compensable injury. SeePatchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230; 184 S.W. 3d 31, (2004), citing Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983). Furthermore, this Commission has found that treatment intended to help a claimant cope with chronic pain attributable to a compensable injury may be reasonable and necessary. See Maynard v. Belden Wire Cable Company, Full Workers' Compensation Commission Opinion filed April 28, 1998 ( E502002); See also Billy Chronister v. Lavaca Vault, Full Workers' Compensation Commission opinion filed June 20, 1991 (Claim No. 704562). Additionally, a claimant does not have to provide objective medical evidence of his continued need for treatment. Castleberry v. Elite Lamp Co., 69 Ark. App. 359, 13 S.W. 3d 211 (2000), citing Chamber Door Indus., Inc. v. Graham, 59 Ark. App. 224, 956 S.W. 2d 196 (1997).
Dr. Kee B. Park, a Cape Girardeau, Missouri neurosurgeon, served as the claimant's treating physician in connection with the May 31, 2007 compensable injury through November 5, 2008. On October 10, 2007, Dr. Park removed the claimant from any type of work. During a November 28, 2007 visit, Dr. Park recommended a T7-8 posterior fusion with instrumentation in the treatment of the claimant's compensable injury. Respondent refused to authorize the procedure. Eventually, Dr. Park took a sabbatical in Ethiopia, and was no longer available to provide treatment in connection with the claimant's injury.
The claimant was never physically examined by Dr. Brent Sprinkle, DO, who performed a review of records. The claimant was examined by Dr. James Rodney Field, a Cordova, Tennessee neurosurgeon, on one occasion. The records of Dr. Field recite objective findings, to include atrophy of the interossecr muscles, as well as diagnoses of the T7-T8 compression fractures, which he attributes to Schmorl's nodes.
While the claimant was seen by Dr. Field on one occasion, there is no evidence in the record to reflect that medical treatment was provided during the singular April 20, 2009 visit. Indeed, Dr. Field opined that the claimant had reached maximum medical improvement at the time of the visit, and that he had no residual impairment.
Pursuant to a December 7, 2009 Change of Physician Order, the claimant came under the care of Dr. Kenneth Tonymon, a Jonesboro neurosurgeon. The claimant was initially seen by Dr. Tonymon on February 16, 2010. Following an examination and additional diagnostic studies, Dr. Tonymon recommended that the claimant undergo T7 and T8 kyphoplasty at the Surgical Hospital of Jonesboro, and that the claimant remain off work until seen in follow-up for his post-operative appointment. Responsive to subsequent inquiries, Dr. Tonymon opined that the claimant's injuries were consistent with having been caused by the May 31, 2007 work-related accident as described by the claimant. Dr. Tonymon also opined within a reasonable degree of medical probability that the kyphoplasties he has recommended are reasonable and necessary for the treatment of the T-8 central superior endplate fracture and the T-7 superior endplate fracture.
The claimant has been seen by Dr. Tonymon on at least two separate occasions. The claimant has remained symptomatic since the occurrence of the May 31, 2007 compensable injury. In addition to reviewing the claimant's prior medical records, the claimant has been examined by Dr. Tonymon, and undergone additional diagnostic studies. Based on the above evidence, I find that the kyphoplasty procedure recommended by Dr. Tonymon is reasonably necessary medical treatment for the claimant's compensable injuries.
Temporary Total Disability
Temporary total disability for unscheduled injuries is that period within the healing period in which claimant suffers a total incapacity to earn wages. Ark. State Highway Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period ends when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Breshears, supra;J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990).
Here, the claimant's treating physician, Dr. Park, removed the claimant from all work activities as of October 10, 2007, pending a surgical procedure to treat the compensable injury. As of November 5, 2008, it was still the opinion of Dr. Park that the claimant has restrictions in place as a result of the compensable May 31, 2007 injury that prevent him from engaging in gainful employment. Although Dr. Field was of the opinion that, as of the date of his April 20, 2009 evaluation of the claimant, the claimant was at maximum medical improvement, his reports acknowledged the presence of objective findings of the injury, which he attributes to an aggravation of the claimant's pre-existing condition. Indeed, in his April 24, 2009 report, Dr. Field recites of the claimant:
His weight and his job and his general physical activity probably summated to cause the rupture through the end plate into the bone. These types of Schmorl's node rupturing into the vertebral body are not common in people that have normal bone density. Mr. Vincent does not.
The employer takes the employee as he finds him and employment circumstances that aggravate pre-existing conditions are compensable. Heritage Baptist Temple v. Robison,supra. I find that the evidence of record reflects that the claimant has remained symptomatic and severely restricted in his physical activity level as a result of the May 31, 2007 compensable injury. The claimant has not been gainfully employed since sustaining the May 31, 2007 compensable injury. Therefore, the claimant is entitled to additional temporary total disability benefits.
For the aforementioned reasons, I must dissent from the majority opinion.
___________________________________ PHILIP A. HOOD, Commissioner