BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G402602 & G403365 JIMMY L. BOYD, EMPLOYEE
CLAIMANT
CITY OF FORREST CITY, EMPLOYER
RESPONDENT
ARKANSAS MUNICIPAL LEAGUE – WCT, INSURANCE CARRIER/TPA
RESPONDENT
OPINION FILED DECEMBER 22, 2015 Hearing before Chief Administrative Law Judge David Greenbaum on November 19, 2015, at Forrest City, St. Francis County, Arkansas. Claimant represented by Mr. M. Scott Willhite, Attorney-at-Law, Jonesboro, Arkansas. Respondents represented by Mr. J. Chris Bradley, Attorney-at-Law, North Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was conducted on November 19, 2015, to determine whether the claimant was entitled to additional workers’ compensation benefits. A prehearing conference was conducted in this claim on October 7, 2015, and a Prehearing Order was filed on said date. At the hearing, the parties announced that the stipulations, the issue, as well as their respective contentions were correctly set out in the Prehearing Order. In addition, the parties offered an additional stipulation concerning claimant’s authorized treating physician. A copy of the October 7, 2015, Order was introduced, without objection, as “Commission’s Exhibit 1.” It was stipulated that the employee/employer relationship existed at all relevant times, including both January 9, 2013, as well as March 19, 2014; that the claimant sustained cervical injuries as the result of specific incidents arising out of and during the course of his employment with the City of Forrest City on said dates; that respondents have paid various medical and indemnity benefits, including a four percent (4%) whole body
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impairment; and that respondents have controverted claimant’s entitlement to proposed surgery. At the hearing, the parties agreed that the claimant was initially treated by the company doctor, Dr. Webber, who referred the claimant to Dr. Robert Abraham; that Dr. Robert Abraham was an authorized treating physician; that thereafter, respondents sent the claimant to Dr. Justin Seale for a second opinion; and that Dr. Abraham has remained an authorized treating physician. By agreement of the parties, the primary issue presented for determination was whether the claimant was entitled to cervical surgery as the result of his admitted injuries recommended by Dr. Robert Abraham. If answered affirmatively, claimant’s entitlement to associated benefits must be determined. Claimant contended, in summary, that his treating physician had recommended that he undergo cervical surgery; that the surgery was reasonably necessary, as well as related to his compensable injuries, aformentioned; that respondent should be held responsible for the surgery, together with continued, reasonably necessary medical treatment; that he would be entitled to temporary total disability benefits from the date of the surgery, if approved, and continuing through an undetermined date and until such time as his healing period was determined to have ended; and that he was entitled to a controverted attorney’s fee on any benefits awarded. The respondents contended that it had paid all appropriate benefits to which the claimant was entitled, to date; that the claimant’s healing period ended on or about November 5, 2014, at which time the claimant was assigned a four percent (4%) whole body impairment; that the claimant returned to work with restrictions consistent with the results of a reliable functional capacity evaluation; that, thereafter, Dr. Abraham completed
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a form in early July 2015, asserting that the claimant’s impairment was greater than the four percent (4%) and that the claimant was still within his healing period and required surgery; that the surgery was not reasonably necessary nor supported by the medical evidence. The claimant was the only lay witness to testify. The record is composed solely of the transcript of the November 19, 2015, hearing containing two (2) volumes of medical exhibits, twenty-seven (27) pages introduced by the claimant and fifty (50) pages introduced by the respondents as “Claimant’s Exhibit A” and “Respondent’s Exhibit A,” respectively. From a review of the record as a whole, to include medical reports, documents and other matters properly before the Commission, and having had an opportunity to hear the testimony of the claimant and to observe his demeanor, the following findings of fact and conclusions of law are made in accordance with Ark. Code Ann. §11-9-704: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1.
The Arkansas Workers’ Compensation Commission has jurisdiction over this claim.
2.
The stipulations agreed to by the parties are hereby accepted as fact.
3.
The claimant has proven, by a preponderance of the evidence, that his need for cervical surgery is reasonably necessary, related to his compensable injuries, and is the responsibility of the respondent/carrier, Arkansas Municipal League – Workers’ Compensation Trust.
4.
Respondents are responsible for surgery recommended by Dr. Robert Abraham, together with continued, reasonably necessary medical treatment.
5.
The claimant will be entitled to appropriate temporary total disability benefits from the date he is taken off work for the surgery and continuing until such time as Dr. Abraham determines that his healing period has ended.
6.
Claimant’s attorney is entitled to a controverted attorney’s fee consistent with, and limited by the provisions of Ark. Code Ann. §11-9-715. DISCUSSION The material facts in this claim are basically undisputed. Further, I found the
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claimant to be an extremely credible witness. The record reflects that the claimant has sustained two (2) cervical injuries which arose out of and during the course of his employment with the City of Forrest City, resulting in disability, as well as the need for medical treatment which has continued since the initial injury on January 9, 2013. Despite sustaining two (2) significant injuries, the claimant is an extremely hard working, conscientious and dedicated employee who has, at all times, complied with the treating physician’s recommendations while taking significant prescription medications for muscle spasms and pain in order to retain his job. Again, the claimant’s credible testimony is undisputed. As will be set out further below, the claimant’s primary and authorized treating physician has recommended surgical intervention to correct the claimant’s admitted injuries. In fact, it appears that, at some point, the respondent/carrier authorized the proposed surgery and then, for some reason, not fully explained, controverted the proposed surgery based upon an earlier and outdated medical opinion from a physician of its own choosing. A preponderance of the credible evidence supports claimant’s need for surgery. The claimant , Jimmy L. Boyd, testified in his own behalf. The claimant is fifty-three (53) years old. He has a high school education. The record reflects that the claimant has been employed by the respondent/employer for approximately six (6) years. The claimant works in the street department. His work would be considered heavy manual labor. The record reflects that the claimant has sustained two (2) cervical injuries as the result of two (2) separate incidents which arose out of and during the course of his employment. The first incident occurred on January 9, 2013. The claimant was involved in a work-related motor vehicle accident when he was rear-ended by another vehicle. The incident was promptly reported.
The employer exercised good faith in meeting its
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obligations by providing the claimant with prompt medical treatment. The claimant was initially examined and treated at the emergency room. Next, the claimant was sent by the employer to the company doctor, Dr. David Webber, who following a MRI which revealed a C4-C5 disc bulge, referred the claimant to Dr. Robert Abraham, a neurosurgeon with the NEA Baptist Clinic in Jonesboro, Arkansas. Dr. Abraham has remained the claimant’s primary and authorized treating physician since on or about February 25, 2013. Dr. Abraham’s medical history is set out, in part, below: MR. BOYD IS HERE TODAY WITH C/O NECK PAIN SINCE 1-9-13. HE WAS INVOLVED IN AN MVA WHERE HE WAS HIT FROM BEHIND. HE WAS TRANSPORTED TO THE ER AND WAS TOLD TO F/U WITH HIS PCP. HE WAS GIVEN ANTI-INFLAMMATORY MEDS THAT HELPED SOME. HE HAS TAKEN PAIN MEDS AND MUSCLE RELAXERS THAT SOMETIMES HELP. HE HAD AN MRI AND WAS REFERRED HERE. HE IS HAVING PAIN APPROX. TWICE DAILY. HIS PAIN IS MORE PREVALENT AFTER HE HAS BEEN WORKING. HIS PAIN IS IN THE MIDLINE OF HIS MID AND LOWER C SPINE THAT HE DESCRIBES AS STIFFNESS. HE STATES THAT MOST WORK WITH HIS ARMS WILL INCREASE HIS PAIN. HE TAKES ADVIL AND PAIN MEDS AND MUSCLE RELAXERS TO HELP EASE HIS PAIN. HE WILL OCCASIONALLY FEEL LIKE PIN PRICKS IN THE FINGERS ON HIS L HAND. (Resp. Ex. A, p.3) It appears that the claimant missed very little work following the initial injury. After returning to work, the claimant continued working while taking medications. The claimant was involved in a second work-related incident on March 19, 2014. Following the second incident, the claimant was taken off work for several months.
Eventually, the
respondent/carrier obtained a second opinion from Dr. Justin Seale concerning the claimant’s need for treatment. The claimant was released to return to work in a restricted capacity, and, in fact, returned to work despite continuing to experience significant symptoms. Following a functional capacity evaluation, the restrictions were removed by Dr. Seale and the claimant continued working while taking significant medications for pain. The
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claimant’s course of conduct, medical treatment, together with a description of the second injury is set out below: Q All right. So you took pain medication after your 2013 accident, but you continued to work? A
Yes, sir.
Q All right. Now, let’s move forward to March 19th of 2014. Briefly tell us what happened on that day? A Basically, we was in a pickup truck, and the guy which is a CDL driver, for some strange reason he didn’t see the pole and backed into a telegram pole. Q
Okay.
A
And that jarred it, my neck, making more pain.
Q
All right, and was this during work hours and in the work truck?
A
During work hours, yes, sir.
Q
Okay, and you said the CL, what?
A
He had a CDL, you know, CDL driver.
Q
All right. After that March 19, 2014 incident, what doctor did you see?
A I went to see which – the first thing I did, we went up to the City Hall and told them what had happened and everything, and they told me to go see Dr. Abraham since he were my doctor and it did consist of my neck, so – Q
And did you do that?
A Yes, sir, I went and seen him when I got an appointment to see him, and that’s when he took me off, off of work period. Q
How much time did you miss from work at that point?
A
Approximately, probably four or five months or so.
Q
Okay. And did you receive payment from workers’ comp during that time?
A
Yes, sir, I did.
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Q Okay. Then did you return to work at some light duty position after that four or five months? A After that was over, I did return to work. They said it was light duty but it really wasn’t, and I was basically waiting to get a second opinion, and the second opinion were from – through Dr. Seale in Little Rock. Q
Okay. Is that something that you requested, to see Dr. Seale in Little Rock?
A
No, sir.
Q
Okay, workers’ comp sent you there?
A
Yes, sir, they wanted a second opinion.
Q All right. No, let’s sort of back up a little bit and talk about how your symptoms changed, if any, after the March 2014 accident. A It was more pain. I mean, I went back to Dr. Seale and that’s when he released me, but I had to take a Functional Capacity Exam. Q Before we get to that FCE, let’s – page one of what I believe is going to see referred to as Claimant’s Exhibit 1, which is our medical exhibit, is a note where you saw Dr. Abraham on April the 2nd, 2014, which I believe is the first medical visit you had with him after this accident? A
Yes.
Q
Do you think that’s correct?
A
Yes.
Q
He described there that you had burning/numb sensation in your hands?
A
In my right hand, yes, sir.
Q
Okay, does that accurately describe what you were experiencing?
A
Yes, sir.
Q Is that something you had also experienced before March of 2014, or was that the first time you began experiencing that? A
It was before March ‘14.
Q
Okay, it just made it worse?
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Yes.
Q Okay. No page three of Claimant’s exhibit also refers to what’s called a ACDF C 4/5, which is I believe a cervical surgery. Was that discussed – was surgery discussed at that point? A
Yes, sir.
Q And it looks like then on page 4 also you saw Dr. Abraham with a follow-up on July 7th, 2014, and he indicated the meds – the medications you were taking were not helping. Is that the way things progressed? A
Yes, sir.
Q
What medications were you taking at that point, Jimmy?
A
Some 7.5 hydrocodone.
Q
All right, and were you working or not working at that point?
A
Working.
Q
Okay, so you were taking the medications and then having to go to work?
A
Yes, sir.
Q
Were you working your normal shift?
A
Yes, sir.
Q Were they giving you some sort of accommodations at work to try to avoid heavy kind of work? A Well, the guys I work with understood my situation that I was in, and they didn’t just really promote [sic] me to do the heavy, you know, heavy work. Q Yes, sir. Now, I don’t know if you are aware, but we sent Dr. Abraham a questionnaire at about that time following your July visit. It’s marked page seven of Claimant’s Exhibit 1 and he says, “Patient has not received MMI, needs operative therapy.” Is that something that you were aware of, that surgery was recommended? A Yes, after we went through in the physical therapy and the meds and nothing was working, he recommended that surgery be the best thing to do. Q
Okay. So you had prescription medications that were tried?
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A
Yes.
Q
You had physical therapy that was attempted?
A
Yes.
Q
And that didn’t relieve the problem?
A
No, sir.
Q
Did you continue to have the burning and numbness in your right hand?
A
Yes.
Q
Has that ever eased up?
A
No, sir.
Q
Do these symptoms affect your ability to do your job, Jimmy?
A
No, sir, not really.
Q
Okay, are you able to do anything you want to at work?
A
Basically, yes, sir.
Q
What about heavy lifting?
A
Not consistent.
Q
Okay. Do you believe you need the surgery that’s been recommended for you?
A
Yes, I do.
Q
And why do you want to undergo that type of treatment?
A I mean, I’ve been going through this pain and suffering for – going on three years, and, I mean, I had things I normally could do I can’t do. Q That’s what I was getting at. You just said that you felt like you were able to do your job at work. Does it affect your ability to work? A No, sir, I be in pain while I’m working. That’s why I take two and three hydrocodones a day sometimes. Q
You do your work even though you’re in pain?
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I do my work, yes, sir. (Tr.11-16) As noted above, the Municipal League sent the claimant to Dr. Justin Seale, an
orthopedic surgeon with Arkansas Specialty Orthopaedics, for a second opinion. Dr. Seale initially evaluated the claimant on September 22, 2014. Dr. Seale recognized that the claimant had a disc protrusion at C4-5. He opined that this was an objective finding of work injury. Further, he opined that at least fifty-one percent (51%) of the claimant’s symptoms were directly related to his work injury. Dr. Seale placed the claimant on work restrictions of no lifting over thirty (30) pounds. He further stated that if the claimant was unable to return to regular work, he would consider a functional capacity exam which was subsequently performed. Dr. Seale eventually released the claimant to return to work with no restrictions and a four percent (4%) whole body impairment which I found to be totally inconsistent with the record as a whole. Apparently, Dr. Seale discussed the recommended surgical intervention which Dr. Seale did not find to be warranted at that time. Following a functional capacity evaluation, the claimant returned to Dr. Seale for a final visit on April 6, 2015. Suffice it to say that Dr. Seale’s history is totally inconsistent with the record. Further, Dr. Seale stated in his history that the claimant had a third exacerbation of his injury and had not worked since March 19, 2014, which is clearly incorrect. The claimant returned to work following the initial light-duty release. He has continued working while taking medications despite continued and progressive symptoms. Dr. Seale’s opinion was based, in substantial part, upon the fact that the claimant performed at a reliable effort with fifty-one (51) of fifty-one (51) consistency measures in his functional capacity evaluation further reflecting on the claimant credibility, as well as his work ethic. It must be noted that Dr. Abraham earlier opined that the claimant had not reached
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maximum medical improvement, required operative therapy; however, allowed the claimant to work with restrictions of a forty (40) pound lifting and limit any work above shoulders which he felt was related to the March 19, 2014, incident. (Cl. Ex. A, p.7) The medical record is extremely confusing. After the claimant’s release by Dr. Seale in November, 2014, the claimant returned to work while taking medications and receiving follow-up treatment from Dr. Abraham. On September 30, 2015, Dr. Abraham noted that a cervical MRI revealed a herniated disc and recommended an anterior cervical discectomy and fusion at C4-C5. Dr. Abraham further noted that insurance would not approve the surgery initially, but that surgery had since been approved and that the claimant returned to discuss surgery. I can only anticipate that the surgery was approved by health insurance, but never performed because the claimant would then be unable to work and have no source of income if he took off work for the surgery. As previously noted, the claimant has continued working while taking substantial medication in order to work. (Cl. Ex. A, pp.17-27) ADJUDICATION The primary issue presented for determination is whether the claimant is entitled to cervical surgery as the result of his admitted injury. The Workers’ Compensation Act requires employers to provide such medical services as may be reasonably necessary in connection with an employee’s injury. Ark. Code Ann. §11-9-508; American Greeting Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998). What constitutes reasonably necessary medical treatment under Ark. Code Ann. §11-9-508 is a question of fact for the Commission. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996); Geo Specialty Chem., Inc. v. Clingan, 69 Ark. App.
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369, 13 S.W.3d 218 (2000). Medical treatment which is required to stabilize and maintain an injured worker’s status remains the responsibility of the employer. Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983). First, I feel compelled to point out that the claimant’s symptoms have existed since January 9, 2013.
Further, the record reflects that the symptoms have become
progressively worse, in large part because of the claimant’s work ethic. The claimant has continued performing physically demanding job tasks while taking prescription medications in order to allow him to continue working. I find that the opinion and recommendations of the claimant’s primary authorized treating physician to be much more persuasive than the opinion provided by Dr. Justin Seale. Clearly, the claimant recognizes that there are no surgical guarantees to improve his condition. Further, the claimant is aware of the risks involved in surgery. However, the decision concerning surgery should be made through informed consent of the claimant and based upon sound medical advice. I feel compelled to further point out that there is no dispute concerning the cause of the claimant’s need for treatment which all medical providers agree was caused by his admitted work-related injuries.
Further, even Dr. Seale acknowledges that surgery may be necessary as
reflected by his assessment and recommendations in his September 22, 2014, report which states: Assessment 1. Disc protrusion, central to right paracentral, C4-5 with a main complain [sic] of axial neck pain and left-sided trapezial pain 2. degenerative disc disease, C4-5 and C5-6 worse at C4-5 Plan I do agree with the patient has an objective finding of an injury at C4-5 being a disc protrusion. However, his main complaint is axial neck pain that is more on the left side. His protrusion is one [sic] the right side. I believe that this is unlikely to improve with surgical
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intervention. I recommend strongly against arthroplasty as well as a fusion. If he had any surgery I would recommend a fusion with the main complain [sic] of axial neck pain. However I discussed with him today that the outcomes for certical fusions in axial neck pain are limited. I reviewed the x-rays with the patient. I discussed with the patient that when they hurt they’re not damaging anything. I am placing the patient on work restrictions of no lifting over 30 pounds I’ll see him back in 6 weeks without x-rays. If he is able to tolerate light duty work we’ll consider return to regular work. If he is unable to return to regular work, we will consider a functional capacity exam. He does have a disc protrusion at C4-5. This is an objective finding of work injury. Therefore it is within a certain degree of medical certainty that at least 51% of the patient’s current symptoms are directly related to his work injury. We will provide him with an impairment rating a [sic] followup. Tramadol p.r.n. pain (Resp. Ex. A, p.21)(Emphasis supplied) It is well-settled that the claimant has the burden of proving the job-relatedness of any alleged injury, without the aid of any kind of presumption in his favor. Pearson v. Faulkner Radio Service, 220 Ark. 368, 247 S.W.2d 964 (1952); Farmer v. L.H. Knight Company, 220 Ark. 333, 248 S.W.2d 111 (1952). The burden of proof claimant must meet is preponderance of the evidence. Voss v. Ward’s Pulpwood Yard, 248 Ark. 465, 425 S.W.2d 629 (1970). Under prior law, it was the duty of the Commission to draw every legitimate inference in favor of the claimant and to give the claimant the benefit of the doubt in making factual determinations. However, current law requires that evidence regarding whether or not a claimant has met the burden of proof be weighed impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. §11-9-704(c)(4); Wade v. Mr. C.Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987).
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After reviewing the evidence in this case impartially, without giving the benefit of the doubt to either party, I find that the claimant has proven that he is entitled to the surgery requested. The parties are encouraged to provide Dr. Abraham with a copy of Dr. Seale’s September 22, 2014, recommendations. Accordingly, I hereby make the following: AWARD Respondent, Arkansas Municipal League – Workers’ Compensation Trust, is hereby directed and ordered to pay continued reasonably necessary medical treatment, including, but not limited to surgical therapy if still recommended by the claimant’s primary and authorized treating physician. Respondents are further directed and ordered to pay temporary total disability benefits at the appropriate rate, beginning with the date that the claimant is taken off work for the surgery and continuing until such time as Dr. Abraham determines that the claimant has reached maximum medical improvement. Additionally, claimant’s attorney, Mr. M. Scott Willhite, is hereby awarded the maximum statutory attorney’s fee on any indemnity benefits, one-half (½) to be paid by the respondents and one-half (½) to be withheld out of the claimant’s benefits pursuant to Ark. Code Ann. §11-9-715. This Award shall bear interest at the legal rate until paid. IT IS SO ORDERED.
DAVID GREENBAUM Chief Administrative Law Judge
