BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G BETTY DAVIS, EMPLOYEE DOLLARWAY SCHOOL DISTRICT, EMPLOYER

Transcription

1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G BETTY DAVIS, EMPLOYEE DOLLARWAY SCHOOL DISTRICT, EMPLOYER ARKANSAS SCHOOL BOARDS ASSOCIATION, INSURANCE CARRIER CLAIMANT RESPONDENT RESPONDENT OPINION FILED AUGUST 30, 2016 Hearing before Administrative Law Judge Elizabeth W. Hogan on June 3, 2016, in Pine Bluff, Jefferson County, Arkansas. Claimant represented by Mr. Kenneth A. Olsen, Attorney at Law, Bryant, Arkansas. Respondents represented by Mr. Terry Don Lucy, Attorney at Law, Little Rock, Arkansas. ISSUES A hearing was conducted to determine the claimant s entitlement to payment of additional medical treatment and attorney s fees. At issue is whether or not additional medical treatment is reasonable and necessary pursuant to Ark. Code Ann After reviewing the evidence impartially, without giving benefit of the doubt to either party, Ark. Code Ann , I find the evidence does not preponderate in favor of the claimant. STATEMENT OF THE CASE The parties stipulated to an employee-employer-carrier relationship on November 25, 2013, at which time the claimant sustained a compensable left shoulder injury at a compensation rate of $197.00/$ Medical expenses until the end of the healing period on June 24, 2014, and temporary total disability benefits from December 3, 2013, to January 23, 2014, have been accepted. The Medical Cost Containment Division approved a Change of Physician on April 28, 2014, from Dr. Charles Pearce to Dr. John Yocum. The claimant has received benefits from Lincoln Financial and Social Security Disability.

2 -2- The claimant contends she remains symptomatic and wishes to pursue Dr. Hefley s recommendation for surgery. She concedes that Dr. Hefley is not an authorized physician. She also seeks payment of attorney s fees. The respondents contend further treatment is not reasonable or necessary. Since Dr. Hefley is unauthorized, the respondents are not liable for medical expenses associated with his treatment. The claimant was released for light duty on January 16, 2014, and respondents accommodated her restrictions. The following were submitted without objection and comprise the evidence of record: the parties prehearing questionnaires and a joint exhibit packet contained in the transcript. The claimant, who was emotionally distraught, was the only witness to testify at the hearing. The claimant, age 60 (D.O.B. May 31, 1956), is left hand dominant. On November 25, 2013, the claimant injured her left shoulder picking up a box of frozen food while performing her job in the school cafeteria. She reported the incident and was sent to general practitioner, Dr. Alexander. After conservative treatment, the claimant was referred to Dr. Charles Pearce. In January 2014, Dr. Pearce released her from his care. The claimant applied for a change of physician and was sent to Dr. John Yocum. He released her on June 24, 2014, with restrictions (5 pounds). In May 2014, The claimant saw Dr. Hefley without prior approval along with her family doctor, Dr. Marshall Kelly, and Dr. Roy Burrell. In August 2014, school resumed and the claimant was provided light duty performing computer work and helping out in the cafeteria using only one hand. In her deposition, however, the claimant made no mention of kitchen work. The claimant is under the mistaken impression that she has a torn rotator cuff and/or dislocated shoulder. But a June 17, 2014, MRI scan was positive for

3 -3- tendinosis, degeneration, arthrosis, bursitis, and a loose body in the axillary recess. The claimant s physicians discussed surgery with her but she never pursued it (even with her group carrier) due to personal problems (husband s lung cancer in January 2015, son s death in August 2015, and granddaughter s liver condition). She now wishes to pursue additional medical treatment as her arthritis flares in the winter months. The claimant has not worked since October 8, She has received money from short-term disability and long-term disability. She has also applied for Social Security Disability and became eligible for school retirement on her 60 th birthday. The claimant was displeased with the carrier for not giving her time off work to heal and not providing an MRI for the first six (6) months; she thought the light duty was too difficult, and she was dissatisfied with Dr. Pearce. Respondent s counsel argues the claimant was doctor shopping and changing physicians every time she was released to return to work, (TR. p , 61-62). The claimant complained she now has bilateral shoulder pain. She attributes the right shoulder pain to overuse while protecting the left arm. Her physical exams are the same for both shoulders which have been stable since late MEDICAL EVIDENCE The claimant has been treated by six (6) physicians, Dr. Lester Alexander, Dr. Charles Pearce, Dr. John Yocum, Dr. William Hefley, Dr. Roy Burrell and Dr. Manuel Kelly. Dr. Alexander provided conservative treatment in November and December 2013, for sprains and strains of the left shoulder. She was prescribed medication and physical therapy. An X-ray on November 26, 2013, revealed no significant bony abnormality. Prior to the shoulder injury, the claimant also had X-rays of the

4 -4- left wrist taken on April 3, 2013, which were also normal. Apparently this symptom has been present for at least three (3) years. Dr. Charles Pearce saw the claimant on January 16, Based on X-rays, Dr. Pearce diagnosed moderate glenohumeral arthritis with a (sic) inferior humeral head spur...with exacerbation from on-the-job injury and developing capsulitis. He prescribed medication and physical therapy. He returned her to work the same day on one-armed duty. Dr. Pearce s report of January 30, 2014: She and her daughter complained about her been (sic) asked to do light duty. I think is (sic) very reasonable to do right arm duty only... At this point I would suggest that she seek a second opinion. Her medical records will be provided to her. It is still my opinion that the underlying shoulder problem is degenerative in nature and is at least moderate if not severe. He (sic) asked about an MRI scan, but I doubt that would be helpful in her diagnosis. More appropriately, CT scan may be needed to evaluate for joint replacement, however, this is not because of a work injury. This in my opinion stated within a reasonable degree of medical certainty. Dr. Pearce diagnosed the claimant with degenerative disease of the left shoulder. He recommended ibuprofen or other anti-inflammatory medication rather than narcotics. The claimant saw Dr. John Yocum on May 13, He mentioned that physical therapy and anti-inflammatories had been helpful. Dr. Yocum diagnosed osteoarthritis of the left shoulder and recommended an MRI scan to evaluate the rotator cuff. He also returned her to work the same day and assessed a fifteen (15) pound weight limitation. The claimant saw Dr. Hefley on May 16, 2014, without mentioning her treatment with Dr. Yocum. Apparently the claimant paid for this visit with her group insurance. He diagnosed synovitis in addition to Dr. Hefley s assessment of arthritis. Dr. Hefley injected the claimant s shoulder and ordered an MRI scan. He

5 -5- commented, if we cannot make headway with conservative measures, she may need shoulder replacement surgery. The June 17, 2014, MRI scan showed degenerative changes but no rotator cuff tear or dislocation of the shoulder. The claimant has tendinosis, joint effusion, mild bursitis, arthrosis and a loose body in the axillary recess. No physician has explained what this loose body is or what caused it. The claimant returned to Dr. Yocum on June 24, He released her with no impairment. I feel her symptoms are surely due to osteoarthritis. It has certainly been present for a long time. Specifically this was pre-existing. The injury at work exacerbated her arthritis. I discussed with her that she is going to have continuing symptoms forever due to arthritis and that a lot of lifting activities will probably exacerbate her symptoms. I recommend continuing antiinflammatories. We will put her on permanent work restrictions, no overhead, and no lifting greater than 5 pounds. I do not feel she suffered any permanent partial impairment as a result of her injury. The claimant then went to Dr. Scott Bowen s office on July 22, 2014, and spoke with Mr. Christian Perry about total shoulder replacement surgery. From September 2014 to October 2014, the claimant treated with Dr. Roy Burrell. Repeat X-rays and an MRI scan showed degenerative changes. The claimant declined an injection and was prescribed anti-inflammatories for tendinitis. She complained of shoulder pain radiating down her arm to her hand. Discussed treatment options with the patient and advised her that if her main concern in (sic) complaint is pain radiating down her arm that we should have her seen by a spine surgeon. Radicular symptoms down the arm and into the hand or (sic) not a result of the shoulder condition. Patient provided a form which was recently completed by another orthopedic surgeon on September of this year. Will recommend patient be removed from work as no light duty is available for 3 days...the recommendation for total shoulder replacement is a possibility as

6 -6- patient s MRI is clean of any problems other than tendinitis/tendinosis of the rotator cuff. No identifiable tear appreciated. Beginning on December 11, 2014, the claimant saw Dr. Manuel Kelly for shoulder and low back pain after a lifting incident over Thanksgiving. The claimant saw Dr. Burrell again in January 2015, for left shoulder pain that radiates to her hand. Dr. Burrell noted that the radicular pain was not causally connected to her shoulder injury. He recommended a total shoulder replacement for her arthritic condition. On July 30, 2015, the claimant declined a referral to a neurosurgeon to discuss the radiating arm pain. The claimant returned to Dr. Manuel Kelly requesting an extended work excuse until she could see Dr. Burrell again in May. She was also prescribed pain medication. FINDINGS OF FACT AND CONCLUSIONS OF LAW The claimant injured her left shoulder in a lifting incident at work in She has been provided conservative treatment, diagnostic testing and consultation with specialists. She denied any symptoms prior to the incident at work but her MRI scan showed degenerative changes and she had X-rays for left wrist pain prior to any incident at work. Employers must promptly provide medical services which are reasonably necessary in connection with the compensable injuries. Ark. Code Ann (a). However, injured employees have the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004). What constitutes reasonable and necessary medical treatment is a fact question for the Commission, and the resolution of this issue depends upon the sufficiency of the evidence. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). Reasonably necessary medical services may include that necessary to accurately

7 -7- diagnose the nature and extent of the compensable injury; to maintain the level of healing achieved; or to prevent further deterioration of the damage produced by the compensable injury. Greer v. Phillip Mitchell Construction, Full Commission opinion February 14, 2003 (E906565). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, it is necessary to analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Workers Compensation Commission, December 13, 1989 (Claim No. D511255). After reviewing the medical records, I find that shoulder replacement surgery is unnecessary considering the claimant has been living with the condition for some time with conservative treatment. She also does not seem to have a good understanding of her symptoms, some of which do not originate from her shoulder. Therefore, surgery would not address all these symptoms. 1. The Workers Compensation Commission has jurisdiction of this claim in which the employee-employer-carrier relationship existed on November 25, 2013, at which time the claimant sustained a compensable left shoulder injury at a compensation rate of $197.00/$ Medical expenses until the end of the healing period on June 24, 2014, and temporary total disability benefits from December 3, 2013, to January 23, 2014, have been accepted. The Medical Cost Containment Division approved a Change of Physician on April 28, 2014, from Dr. Charles Pearce to Dr. John Yokum. The claimant has received benefits from Lincoln Financial and Social Security Disability. 2. The claimant has failed to prove by a preponderance of the evidence that surgery is necessary pursuant to Ark. Code Ann If they have not already done so, the respondents are directed to pay the court reporter, Celia Jamison s, fees and expenses within thirty (30) days of receipt of the bill. This claim is respectfully denied and dismissed.

8 -8- IT IS SO ORDERED. ELIZABETH W. HOGAN Administrative Law Judge