BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. F DAN DAVIS, EMPLOYEE TETON INDUSTRIAL CONSTRUCTION, EMPLOYER RESPONDENT NO.

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. F DAN DAVIS, EMPLOYEE CLAIMANT TETON INDUSTRIAL CONSTRUCTION, EMPLOYER RESPONDENT NO. 1 NATIONAL UNION FIRE INS. CO./ CHARTIS CLAIMS SERVICE, INSURANCE CARRIER/TPA RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED MARCH 2, 2015 Hearing conducted before ADMINISTRATIVE LAW JUDGE MARK CHURCHWELL, in Little Rock, Pulaski County, Arkansas. The claimant was represented by HONORABLE BRUCE MCMATH and HONORABLE CARTER STEIN, Attorneys at Law, Little Rock, Arkansas. Respondents No. 1 were represented by HONORABLE JARROD S. PARRISH, Attorney at Law, Little Rock, Arkansas. Respondent No. 2 was represented by HONORABLE CHRISTY L. KING, Attorney at Law, Little Rock, Arkansas, who waived appearance. STATEMENT OF THE CASE A hearing was held in the above-styled claim on January 13, 2015, in Little Rock, Arkansas. A Prehearing Order was entered in this case on December 2, The following stipulations were submitted by the parties and are hereby accepted: 1. The employer/employee relationship existed on October 2, 2008, when claimant sustained an admittedly compensable neck and shoulder injury. 2. At the time of his injury, the claimant s average weekly wage was such to entitle him to the maximum TTD/PPD benefits of $522/$ Claimant was deemed by Dr. Travis Burt to have reached maximum medical improvement on

2 2 September 1, 2009, and he received a 14% body as a whole impairment rating which has been accepted and paid out by the carrier. By agreement of the parties, the issues to be litigated and resolved at the present time were limited to the following: Claimant: 1. Claimant seeks compensation for medical treatment received from July 23, 2012, to present. 2. Claimant also seeks future medical benefits. 3. Claimant seeks additional temporary total disability, temporary partial disability benefits, permanent partial disability benefits and/or mileage from July 23, 2012, to a date to be determined. (Reserved) 4. End of healing period. (Reserved) 5. Claimant seeks permanent and total disability benefits. (Reserved) 6. Nature and extent of the claimant s compensable injuries and compensable consequences (including but not limited to complex regional pain syndrome and headaches). Respondent No. 1: 1. According to claimant s counsel, he is seeking every benefit available under the Act except vocational rehabilitation. Respondent No. 2: 1. None. The record consists of three volumes: (1) the January 13, 2015, hearing transcript and the exhibits contained therein; (2) the transcript of the oral deposition of Dr. David Cook taken March 26, 2013, and the exhibits included

3 3 therein, marked as Claimant s Exhibit 3; and (3) the following post-hearing exchange of correspondence and documents which I have blue-backed together in one volume to designate as part of the hearing record: Mr. Stein s correspondence dated January 14, 2015, and the documents attached thereto; Mr. Parrish s correspondence dated January 15, 2015; Mr. Parrish s correspondence dated January 28, 2015; and Mr. McMath s correspondence dated January 29, FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The employer/employee relationship existed on October 2, 2008, when the claimant sustained an admittedly compensable neck and shoulder injury. 2. At the time of his injury, the claimant s average weekly wage was sufficient to entitle him to the maximum compensation rates of $522 per week for temporary total disability and $392 per week for permanent partial disability. 3. The claimant was deemed by Dr. Travis Burt to have reached maximum medical improvement on September 1, 2009, and he received a 14% body as a whole impairment rating which has been accepted and paid out by the carrier. 4. The claimant has failed to establish by a preponderance of the credible evidence that any of his medical treatment after July 23, 2012, is reasonably necessary for the compensable injuries that he sustained on October 2, DISCUSSION The claimant, Dan Davis, was in July of 2012 a Tennessee resident working for Teton Industrial Construction at a construction site in Foreman, Arkansas. (T ) Mr. Davis was an inspector and a welder and his salary with per

4 4 diem averaged approximately $2800 to $3000 per week. (T. 37, 40) Mr. Davis sustained admittedly compensable injuries to his neck and shoulder on October 2, 2008, when he was struck by a truck backing up, knocking him down and catching himself with his left arm. (C. Exh. 1 p. 1) Mr. Davis first saw a doctor in Arkansas four days after the incident, and after a short course of treatment in Arkansas, Mr. Davis returned to Tennessee on or about October 17, (T. 96) As far as this examiner can discern from the hundreds of pages of medical reports in evidence, Mr. Davis shoulder injury did not require any surgical intervention and plays no part in the current claim for additional medical benefits. However, through a course of referrals after returning to Tennessee, Mr. Davis came under the care of a neurosurgeon, Dr. Travis Burt, for his work-related neck injury. On February 9, 2009, Dr. Burt performed a two level complete discectomy and fusion at the C5-6 and C6-7 levels of Mr. Davis cervical spine. (C. Exh. 1 p. 40) Dr. Burt indicated on June 30, 2009, that Mr. Davis was at maximum medical improvement and could return to his pre-injury job status. (C. Exh. 1 p. 69) After a final examination on August 11, 2009, Dr. Burt indicated that Mr. Davis could return PRN. (C. Exh. 1 p. 73)

5 5 However, rather than returning to Dr. Burt, approximately two weeks later, Mr. Davis on August 24, 2009, presented to the office of Dr. Michael Stone complaining of headaches for the last twelve days. (C. Exh. 1 p. 75) Since leaving the care of his authorized treating physician, Dr. Burt, in the summer of 2009, Mr. Davis was treated or evaluated over the next several years by various physicians of various specialties including Dr. Stone, Dr. Julia Jacques, Dr. David Cook, Dr. Gordon Marsa, Dr. Carlos Bagley, Dr. Robert Bridges, Dr. David Wiles, Dr Paul Chang, Dr. Nancy McGreal, Dr. Melissa Teitelman, Dr. Lance Roy, Dr. Eric Duberman, Dr. Christopher Edwards - and on one more occasion - by Dr. Burt on November 13, (C. Exh. 1 p ) Between the time that Dr. Burt released Mr. Davis to return as need in August of 2009, and the time that Dr. Burt next performed an evaluation on November 13, 2012, Mr. Davis was diagnosed and treated for various medical conditions including headaches, neurological and radiculopathy symptoms, complex regional pain syndrome, erectile dysfunction and colorectal dysfunction. Of particular note in the present claim for additional benefits, a spine surgeon, Dr. Wiles, on April 6, 2011, performed fusion surgery at the C4-5 level of Mr. Davis cervical spine. (C. Exh. 1 p. 168) In February of 2012, Mr. Davis telephoned Dr. Cook with an onset of symptom that were

6 6 later determined to be complex regional pain syndrome. (C. Exh. 1 p. 198) By August of 2014, Mr. Davis was experiencing symptoms of complex regional pain syndrome in all four extremities, with symptoms in his left forearm and hand greater than symptoms in his right hand, and symptoms in his right leg greater than symptoms in his left leg. (C. Exh. 1 p ) The claimant seeks an award of certain medical expenses incurred after July 23, 2012, and an award of future medical expenses. This claim turns largely on the extent, if any, that Mr. Davis medical problems after Dr. Burt s last authorized treatment on August 11, 2009, are causally related to Mr. Davis admittedly compensable neck and shoulder injury sustained on October 2, Over the course of time Dr. Cook has rendered medical opinions concluding that Mr. Davis C4-5 fusion surgery, his neurological pain in both hands, his diagnosed complex regional pain syndrome of both arms and both legs, his erectile dysfunction, and his migraine headaches are each a consequence of his original cervical spine injury in (C. Exh. 1 p. 281) In addition, Dr. Cook has opined that the truck incident damaged Mr. Davis colorectal area, although Dr. Cook (a neurologist) does not consider himself qualified to opine whether or not that damage caused a rectal tear. (C. Exh. 1 p. 281; C. Exh. 3 p )

7 7 Dr. Burt has opined that Mr. Davis C4-5 fusion surgery was due to a progression after September 1, 2009, of a condition that pre-existed the 2008 injury. (R. Exh. 1 p ) With regard to Dr. Cook s opinion that Mr. Davis now (in ) experiences complex regional pain syndrome of both arms and to a lesser degree both lower extremities, migraine headaches, colorectal dysfunction and sexual dysfunction (impotency) as a direct result of Mr. Davis work injury, Dr. Burt has opined that he does not agree with Dr. Cook s opinion. Doctor Burt has observed that after performing literally thousands of these cases I have never seen even one of these diagnoses as a complicating feature in the postoperative recovery period, ever. (R. Exh. 1 p. 112) In addition to the causation and treatment issues addressed by Dr. Cook and Dr. Burt, Mr. Parrish has also raised as a hearing issue various evidentiary objections that must first be addressed. Issue 1: Evidentiary objections A. Dr. Cook s Opinions At the start of the hearing, Mr. Parrish objected to the admissibility of Dr. Cook s opinions because the claimant s exhibit did not also include the corresponding letters sent from the attorney(s) to Dr. Cook and because Mr. Parrish never received before the hearing information that Mr. Parrish had requested regarding how much Dr. Cook

8 8 was paid. (T. 9) The claimant s attorneys voluntarily agreed to find and make part of the record after the hearing (which I have now done) the information sought by Mr. Parrish. Nevertheless, two weeks after the hearing Mr. Parrish objected for the first time to the admissibility of Dr. Cook s opinions on the grounds that Mr. Parrish was not given an opportunity to cross-examine Dr. Cook based on information contained in the letter and invoice. (Parrish Corr ) However, I note that (1) Dr. Cook s deposition was taken in 2013; (2) Dr. Cook s written opinion were prepared in 2013; (3) the hearing was not conducted until 2015; (4) the letter and payment information were in the possession of the claimant s attorneys; and (5) Mr. Parrish did not avail himself of his right to seek an order before the hearing compelling discovery answers if he deemed such an order necessary to obtain any relevant non-privileged materials that he desired in the possession of the claimant s attorneys. Under these circumstances, Mr. Parrish s objection is overruled, and Dr. Cook s opinions are accepted into evidence. B. Medical Field Periodical Articles Made Exhibits At Dr. Cook s Deposition Mr. Parrish objected as hearsay to the admission into evidence of four medical periodical articles attached to Dr. Cook s deposition taken March 26, (T. 13) Mr. McMath

9 9 asserts that the articles are from learned treatises and that Dr. Cook was an expert witness who was entitled to rely on the articles during his testimony. (T. 14) See generally A.R.E. 803(18). Dr. Cook confirmed during his deposition his familiarity with the articles. (C. Exh. 3 p. 28) In addition, the Arkansas Supreme Court has previously noted that the Arkansas Workers Compensation Commission is not bound by the technical rules of evidence, and that the Commission has expertise much superior to that of a jury in determining the probative value of hearsay evidence that would not be admissible in a Court of Law. St. Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980). Mr. Parrish s hearsay objection is therefore overruled, and the articles attached as Exhibit 1 to Dr. Cook s deposition taken March 26, 2013, will be accepted into evidence and accorded their appropriate probative weight where relevant to the compensation issues addressed herein. Issue 2: Additional Medical Treatment Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann (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 (a)(3); Jordan v. Tyson Foods, Inc., 51 Ark. App.

10 10 100, 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). 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. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004). 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). The Arkansas Courts have long recognized that a preexisting disease or infirmity does not necessarily disqualify a claim for benefits if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Jim Walter Homes Travelers Ins. v. Beard, 82 Ark. App. 607, 120 S.W.3d 160 (2003). Where an injured worker seeks surgery related to a medical condition that was aggravated by a work-related injury, the injured worker is not obligated to establish that the work-related injury is the major cause of the need for treatment in order to be entitled to benefits for surgery. The injured worker

11 11 instead needs only to establish that the work-related injury was a factor in the need for subsequent treatment. Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). The Commission has the duty to resolve conflicting medical evidence, including medical testimony. Maverick Transportation v. Buzzard, 69 Ark. App. 128 (2000). The Commission may review the basis for a doctor s opinion in determining its weight and credibility. Id. When medical opinions conflict, the Commission may resolve the conflict based on the record as a whole and reach the result consistent with reason, justice, and common sense. Barksdale Lumber v. McAnally, 262 Ark. 379, 557 S.W.2d 868 (1977). A physician s special qualifications and whether a physician rendering an opinion ever actually examined the claimant are factors to consider in determining weight and credibility. Id. In the present case, I find that the claimant has failed to establish by a preponderance of the evidence that his injuries sustained on October 2, 2008, are a factor in his need for any of the medical treatment at issue after July 23, Specifically, for the reasons discussed below, I find credible in its entirety the causation opinion of Dr. Burt, and based on that opinion, I find that Mr. Davis has failed to establish any causal connection between the abnormalities at issue diagnosed after August 11, 2009,

12 12 and the work-related injuries that he sustained on October 2, First, I note that Dr. Burt has a neurosurgery specialty and has the benefits of having had personal involvement as a neurosurgeon in thousands of prior cases. Second, I find relevant and significant in light of his vast prior experience Dr. Burt s observation that he has not ever seen in his prior cases postoperatively either complex regional pain syndrome involving all four extremities or migraine headaches or colorectal dysfunction or sexual dysfunction. Third, to the extent that at least some of Dr. Cook s opinions appear to bring into question the presence or absence of certain clinical symptoms existing between October 2, 2008, and August 11, 2009, I note that Dr. Burt was in fact Mr. Davis s treating physician during a large portion of this period. Fourth, to the extent that Dr. Cook has related Mr. Cook s erectile dysfunction and his headaches to the injuries sustained on October 2, 2008, I point out that Mr. Davis was reporting both headaches and difficulties with erections on May 8, 2008, and then on September 23, approximately one week before the incident at work - Mr. Davis reported to a physician that he had daily headaches Like an icepick. (R. Exh. 1 p. 42, 45)

13 13 Fifth, Dr. Cook has identified the precipitants of migraine headaches to be such things as sleep disorder, anxiety, hypertension, neck pain, and daily opioids. (C. Exh. 3. p ) Coincidentally, I note that Mr. Davis, approximately one week before the incident at work, was already noted to have (in addition to icepick headaches) insomnia, stress (Mr. Davis believed that getting away from his current job would help), and hypertension. (R. Exh. 1 p ) In addition, as far as this examiner can discern, Mr. Davis was not being prescribed opioids when Dr. Burt found Mr. Davis at maximum medical improvement and released him to return to his former work in the summer of In addition, this examiner has found only five references to the presence or absence of headache in 73 pages of medical reports offered into evidence by the claimant during his course of treatment from October 2, 2008, through Dr. Burt s last office visit on August 11, Those five references indicate that: (1) Mr. Davis experienced a headache later in the day on October 2, 2008, after he picked himself up after the truck hit him and after he had returned to work for a period of time; (2) Mr. Davis had no headache when he saw Dr. Kleinschmidt shortly thereafter on October 13, 2008; (3) Mr. Davis had left occipital headaches and right temporal headaches when he saw Dr. Neal Jewell on November 12, 2008; (4) Mr. Davis reported to Dr. Jewel on December 5, 2008, that traction caused him

14 14 increasing headaches; and (5) Dr. Burt reported that Mr. Davis had no headache on February 9, 2009, when Dr. Burt admitted Mr. Davis for surgery. (C. Exh. 1 p. 9, 21, 28, 34) This examiner has not located a single reference to headache by Dr. Burt post-surgically, and as referenced above, when Mr. Davis first sought treatment specifically for 12 days of headache on August 24, 2009, he did not return to Dr. Burt for his headaches. He instead sought treatment on his own with Dr. Michael Stone. (C. Exh. 1 p. 75) I infer from this action that Mr. Davis did not consider his headaches in September of 2009 to be related to his neck or shoulder injuries. I find the pre-injury reference to icepick headaches, Mr. Davis seeking treatment for headache outside of workers compensation beginning in August of 2009, and the complete lack of any post-surgical reference to headaches through August 11, 2009, all consistent with Dr. Burt s opinion that Mr. Davis headaches at issue after August 11, 2009, are not in any way related to the injury that he sustained on October 2, Sixth, Dr. Cook testified in 2013 that he has concerns with Dr. Burt in the summer of 2009 releasing Mr. Davis to return to work in a job that requires great mechanical dexterity at a time when Mr. Davis could not feel in his fingers. (C. Exh. 1 p. 46, 73) However, Dr. Cook also testified that he did not recall whether he (Dr. Cook) had ever reviewed the functional capacity evaluation that Mr.

15 15 Davis underwent in the summer of (C. Exh. 1 p. 72) I note that the functional capacity evaluation performed on June 23, 2009, concluded that Mr. Davis performed stair climbing and ladder climbing with no problems and that Mr. Davis at that time could safely return to his job as a QC Inspector/Welder at Teton Industrial Construction so long as he did not exceed the restrictions in the materials and nonmaterials section of the evaluation. (R. Exh. 1 p. 76, 78) Seventh, on the question of whether Mr. Davis 2011 C4-5 surgery was due to a natural progression of his preexisting degenerative disc disease at that level, or was instead a consequence of his 2009 fusion of the next two levels down, I note that the most relevant etiology reference that this examiner noted in the articles attached to Dr. Cook s deposition indicates that: (1) Cervical radiculopathy is said to be of nontraumatic origin in the majority of cases; (2) One large epidemiological study reported that a history of physical exertion or trauma occurred in only 14.8% of the 561 patients studied; and (3) Surgical complications are included in a list of a number of less common or unusual causes of cervical radiculopathy. (C. Exh Exh. 1: Maj. Robert S. Wainner, Diagnosis and Nonoperative Management of Cervical Radiculopathy, Journal of Orthopaedic & Sports Physical Therapy 2000 p. 10) Interestingly, footnote 59 of that article, entitled Radiculopathy and Myelopathy at Segments Adjacent to the

16 16 Site of a Previous Anterior Cervical Arthrodesis, might have provided some scientific or statistical basis either supporting or refuting Dr. Cook s opinion that the prior fusions at C5-6 and C6-7 caused or contributed to the need for C4-5 fusion surgery over two years later. However, Dr. Cook did not include with his deposition the article referenced in footnote 59, and as indicated above, Dr. Wainner s article in evidence indicates both that cervical radiculopathy occurs spontaneously in the majority of patients and that surgical complications as a cause of cervical radiculopathy are either less common or unusual. In light of Dr. Burt s neurosurgical expertise involving thousands of cases, the numerous diagnostic studies available to Dr. Burt in rendering his opinion on the cause for the L4-5 surgery, the more than two year time lapse between the 2009 fusion surgery and the 2011 fusion surgery, and the lack of any contradictory conclusions in the studies attached to Dr. Cook s deposition, this examiner accords greater weight to Dr. Burt s opinion than Dr. Cook s opinion regarding the etiology of the need for L4-5 fusion surgery. In reaching this conclusion, this examiner notes that Dr. Wiles noted in his pre-surgical report dated March 15, 2011, that Dr. Wiles recorded impressions at that time included Previous cervical discectomy and fusion at C5-6

17 17 and C6-7 in a patient who has now developed adjacent segment disease and severe stenosis with myelopathy at C4-5. (Emphasis added) (C. Exh. 1 p. 164) However, as far as this examiner can discern, the only one of Mr. Davis sequence of prior cervical MRIs that Dr. Wiles had available for his review was the most recent MRI performed on August 18, (C. Exh. 1 p. 163) By comparison, Dr. Burt had a total of 23 separate radiographs provided to him for his records review conducted on or about November 13, (R. Exh. 1 p. 106) Under these circumstances, I again accord greater weight to the opinion of Dr. Burt over the opinions of either Cook or Dr. Wiles regarding the etiology of the surgical condition that Dr. Wiles treated at the C4-5 level of Mr. Davis spine on April 6, Eighth, there is no dispute that Mr. Davis complex regional pain syndrome in all four extremities first manifested in February of 2012, which is (1) over three years after the incident at work in October of 2008; (2) approximately three years after Dr. Burt s surgery in February of 2009; but is (3) less than one year after Dr. Wile s surgery performed in April of 2011 for a C4-5 condition - which I have found is unrelated to the 2008 injury or to the 2009 surgery. Again, Doctor Burt has indicated that he has never seen this diagnosis in the postoperative period for any of his thousands of cases, and Dr. Burt disagrees with Dr. Cook s

18 18 opinion that the complex regional pain syndrome is a result of the injuries that Mr. Davis sustained on October 2, Given the lack of a similar diagnosis in any of Dr. Burt s other patients, the three year time lapse between the dates of the compensable injury/surgery and the subsequent onset of complex regional pain syndrome, the intervening surgery performed by Dr. Wiles, and Dr. Burt s causation opinion which I find credible, I find that Mr. Davis has failed to establish that his complex regional pain syndrome first diagnosed in 2012 is in any way causally related to his 2008 injuries or his 2009 surgery. Finally, I note that Mr. Davis attorney indicated at the hearing that Mr. Davis is no longer pursuing a claim for treatment for either his colorectal problems or his erectile dysfunction. ORDER For the reasons discussed herein, this claim for additional medical benefits must be, and hereby is, respectfully denied. The respondents are directed to pay the court reporter s fees and expenses within thirty (30) days of billing. IT IS SO ORDERED. MARK CHURCHWELL Administrative Law Judge

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