BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G IAN RUDE, Employee CLAIMANT. BELLA VISTA FIRE DEPARTMENT, Employer RESPONDENT

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1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G IAN RUDE, Employee CLAIMANT BELLA VISTA FIRE DEPARTMENT, Employer RESPONDENT MUNICIPAL LEAGUE WCT, Carrier RESPONDENT OPINION FILED MARCH 1, 2017 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas. Claimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. Respondents represented by KATIE BODENHAMER, Attorney, No. Little Rock, Arkansas. STATEMENT OF THE CASE On February 1, 2017, the above captioned claim came on for a hearing at Springdale, Arkansas. A pre-hearing conference was conducted on November 9, 2016, and an amended pre-hearing order was filed on December 8, A copy of the prehearing order has been marked Commission's Exhibit #1 and made a part of the record without objection. At the pre-hearing conference the parties agreed to the following stipulations: 1. The Arkansas Workers Compensation Commission has jurisdiction of the within claim. 2. The employee/employer relationship existed between the parties at all relevant times. 3. The claimant sustained a compensable injury to his right shoulder on April 28, At the time of the hearing the parties agreed to stipulate that claimant earned an average weekly wage of $ At the pre-hearing conference the parties agreed to litigate the following issues:

2 2 1. Compensability of claimant s complex regional pain disorder. 2. Claimant s entitlement to additional medical treatment from Dr. Harbut for complex regional pain syndrome, as well as reimbursement for out-of-pocket expenses he has incurred regarding treatment for his complex regional disorder. 3. Temporary total disability from date of last payment through a date yet to be determined. 4. Attorney s fee. At the time of the hearing claimant clarified that the requested dates of temporary total disability include September 24, 2016 through January 11, In addition, with respect to the request for additional medical treatment, claimant noted that at the time of the pre-hearing conference he had received medical treatment from Dr. Harbut, but since that time he has been paying for out-of-pocket treatment from Dr. Miller and Dr. van der Merwe. In essence, claimant is simply asking for payment of additional medical treatment for complex regional pain disorder. The claimant contends he is entitled to continuing medical treatment for his complex regional pain disorder, as well as reimbursement for out-of-pocket expenses he has incurred regarding treatment for this disorder. Claimant contends he is entitled to temporary total disability benefits from September 24, 2016 through January 11, 2017, as well as a controverted attorney s fee. The respondents contend that claimant does not have CRPS/RSD and therefore the treatment recommended by Dr. Harbut is not reasonable and necessary. In the alternative, should the Commission find that the claimant does have CRPS/RSD, respondents contend that the treatment recommended by Dr. Harbut is not reasonable and necessary. Respondents contend that once claimant was released from Dr. Cox s care for treatment of his shoulder injury, the claimant was no longer entitled to temporary total disability benefits.

3 3 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 witnesses and to observe their demeanor, the following findings of fact and conclusions of law are made in accordance with A.C.A : FINDINGS OF FACT & CONCLUSIONS OF LAW 1. The stipulations agreed to by the parties at a pre-hearing conference conducted on November 9, 2016 and contained in an amended pre-hearing order filed December 8, 2016 are hereby accepted as fact. 2. The parties stipulation that claimant earned an average weekly wage in an amount equal to $ is also hereby accepted as fact. 3. Claimant has failed to prove by a preponderance of the evidence that he suffers from complex regional pain syndrome ( CRPS ) or reflex sympathetic dystrophy ( RSD ) as a result of his compensable right shoulder injury of April 28, Claimant has failed to prove by a preponderance of the evidence that he is entitled to additional temporary total disability benefits subsequent to September 19, 2016, the date Dr. Cox indicated no further treatment was needed for the shoulder injury. FACTUAL BACKGROUND The claimant is a 28-year-old man who became employed by the respondent as a probationary firefighter/paramedic on January 5, Claimant s job duties included patient care on the ambulance; life support; lifting and moving patients; and responding to fire calls. Claimant suffered an admittedly compensable injury to his right shoulder while working for respondent on April 28, On that date the claimant was attending training at the Rogers Fire Training Academy. As he was crawling through an attic simulation his

4 4 airpack hung on a roofing truss and as he was attempting to extricate himself his right shoulder popped three times and he had instant pain that radiated down his right arm. Claimant reported this injury to his supervisors and later that day was treated at the emergency room for complaints of right arm pain. Claimant was diagnosed as suffering from a rotator cuff injury, repetitive strain injury. Claimant was treated with medication and instructed to receive follow-up care with Dr. John Price in one week. Claimant was also instructed to return to work at modified duties as tolerated. The next day claimant was sent by respondent for an evaluation with Dr. Berestnev. Dr. Berestnev diagnosed claimant s condition as a right shoulder sprain, over exertion from sudden strenuous movement, and previous history of partial dislocation of the right shoulder. Dr. Berestnev prescribed stretching exercises, an injection, and restrictions. Documentary evidence indicates that claimant continued to remain under the care of Dr. Berestnev and he ordered an MRI scan of claimant s right shoulder which was performed on May 8, The MRI scan reveals that claimant s labrum was grossly unremarkable and that there was no evidence of a source for claimant s shoulder pain. Dr. Berestnev subsequently prescribed claimant physical therapy and work restrictions. In a report dated June 9, 2015, Dr. Berestnev noted that claimant had completed his physical therapy and that his shoulder was better, but claimant still had some soreness. At that point Dr. Berestnev ordered a nerve conduction study which was performed on July 6, 2015, and read as normal. Following that study claimant returned to Dr. Berestnev who in a report dated July 10, 2015 stated that he was puzzled as to the source of claimant s pain. As a result, he referred claimant to Dr. Heim, an orthopedic surgeon, for a second opinion. Claimant s initial evaluation with Dr. Heim occurred on July 15, Dr. Heim assessed claimant s condition as shoulder pain and complex regional pain syndrome. Dr. Heim referred claimant to Dr. Hanley to evaluate the CRPS because she was an expert in that field. Dr. Heim stated that once that issue was resolved an additional evaluation of

5 5 claimant s right shoulder would be performed. Claimant was evaluated by Dr. Hanley on August 27, 2015, and it was her opinion that claimant did not meet the criteria for complex regional pain syndrome. Instead, it was her assessment that claimant simply suffered from shoulder pain which could be treated with medication. Following this evaluation by Dr. Hanley claimant returned to Dr. Heim who in a report dated September 16, 2015 stated that claimant reported that he did not have a good experience with Dr. Hanley and as a result Dr. Heim recommended that claimant see another specialist experienced with CRPS. Claimant did not see another specialist at that time, but instead saw Dr. Cox, orthopedic surgeon, on December 8, Dr. Cox also stated that some of claimant s symptoms were consistent with RSD or CRPS and recommended that claimant be evaluated by Dr. Cannon. Dr. Cannon is a specialist in pain management, and following his evaluation of the claimant wrote a letter to Dr. Cox dated February 8, He stated that it was his belief that claimant did suffer from CRPS, but he also stated that some of claimant s symptoms fit with CRPS and other parts did not fit. It was his recommendation that claimant be evaluated by a physician claimant had found in Hot Springs (Dr. Harbut). Claimant returned to Dr. Cox on February 10, 2016, and he recommended that claimant be evaluated by Dr. Roman in Little Rock. Claimant s evaluation with Dr. Roman occurred on April 5, 2016, and as with Dr. Hanley, it was his opinion that claimant did not suffer from CRPS or RSD. Thereafter, claimant again returned to Dr. Cox on June 8, 2016, and Dr. Cox indicated that a referral to Dr. Harbut in Hot Springs would be appropriate. Claimant was evaluated by Dr. Harbut on July 7, 2016, and it was his opinion that claimant suffers from CRPS and he recommended various medical treatment. Subsequent to that visit with Dr. Harbut, claimant underwent another MRI scan of his right shoulder as ordered by Dr. Cox. According to Dr. Cox s report of September 19,

6 6 2016, the MRI scan showed a normal rotator cuff and labrum and it was Dr. Cox s opinion that no further treatment was needed on the claimant s shoulder. Claimant has not received any of the medical treatment recommended by Dr. Harbut, but instead has received medical treatment for his complaints from Dr. Miller, his primary care physician in Fayetteville, as well as Dr. Katinka van der Merwe, a chiropractic physician operating the Neurological Relief Center in Fayetteville. Claimant is currently working in this clinic and is receiving treatment there as well. Claimant has filed this claim contending that he suffers from complex regional pain disorder as a result of his April 28, 2015 right shoulder injury. He requests payment of medical treatment as well as temporary total disability benefits and a controverted attorney s fee. ADJUDICATION Claimant contends that he suffers from complex regional pain disorder as a result of his compensable right shoulder injury which occurred on April 28, Under Arkansas workers compensation law, employers must provide medical services which are reasonably necessary for treatment of compensable injuries. The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary. Stone v. Dollar General Stores, 91 Ark. App. 260, 209 S.W. 3d 445 (2005). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Wright Contracting Company v. Randall, 12 Ark. App. 358, 676 S.W. 2d 750 (1984). After reviewing the evidence in this case impartially, without giving the benefit of the doubt to either party, I find that claimant has failed to meet his burden of proving by a preponderance of the evidence that payment for treatment associated with CRPS or RSD is reasonable and necessary medical treatment for his compensable right shoulder injury; specifically, I find that based upon the totality of the evidence presented, that claimant has

7 7 failed to prove that he suffers from CRPS as a result of his compensable right shoulder injury. There are a number of medical opinions in this case addressing whether claimant suffers from CRPS as a result of his compensable injury. Some of the physicians who have addressed this issue are admittedly not specialists in the treatment of CRPS. For instance, Dr. Heim and Dr. Cox are both orthopedic surgeons. Both of those physicians believe that claimant suffers from CRPS; however, both of those physicians also referred claimant to physicians who were specialists in treatment of CRPS. In his report of July 15, 2015, Dr. Heim referred claimant to Dr. Hanley to evaluate claimant s potential CRPS. In doing so he stated, I want Dr. Hanley to evaluate this as she is more of an expert in the field of CRPS. In a subsequent report dated August 4, 2015, Dr. Heim again indicated that claimant should be evaluated by Dr. Hanley who he described as a Mayo trained pain specialist and an expert in complex regional pain syndrome. Likewise, Dr. Cox in his report of February 10, 2016 recommended that claimant see a CRPS specialist and at that time referred claimant to Dr. Roman. Notably, Dr. Cannon also indicated that claimant should be evaluated by an expert in treating CRPS. In short, even though all three of these physicians believed that claimant suffered from CRPS, they referred claimant to specialists in treatment of CRPS for further evaluation. I also note that most recently claimant has been treated for his condition by Dr. Miller, a general practitioner, who is claimant s primary care physician. Again, Dr. Miller is not a specialist in the treatment of CRPS. Claimant is currently working for a neurological relief center in Fayetteville operated by Dr. van der Merwe, a chiropractic physician, who has opined that claimant suffers from CRPS. For reasons which will be discussed later in this opinion, I find that the opinions of other physicians are entitled to

8 8 greater weight than that of Dr. van der Merwe. As previously noted, the first CRPS specialist that claimant was evaluated by was Dr. Hanley based on the referral from Dr. Heim. As previously noted, Dr. Heim indicated that Dr. Hanley was a Mayo trained specialist and an expert in regional complex pain syndrome. After her evaluation of the claimant on August 27, 2015, Dr. Hanley stated that claimant did not meet the criteria for complex regional pain syndrome. Instead, she simply diagnosed claimant s condition as shoulder pain. In support of claimant s contention, claimant relies in part upon the opinion of Dr. Harbut of the Hot Springs Pain Institute who evaluated the claimant on August 8, Dr. Harbut wrote an extensive report and concluded that claimant suffered from CRPS and he made various recommendations as to proposed treatment for that condition. Claimant has also been evaluated by Dr. Roman based upon a referral by Dr. Cox. Dr. Roman evaluated the claimant on April 5, 2016, and opined that claimant did not suffer from CRPS, but instead diagnosed claimant s condition as right arm pain. In addition to his medical report, Dr. Roman also testified by deposition on December 28, He testified that he is a board certified anesthesiologist who specializes in pain management. Dr. Roman also testified that he has evaluated thousands of RSD patients and sees some 10 to 20 RSD patients per week. Dr. Roman testified that claimant s clinical presentation did not show any signs of RSD. While he noted that claimant did complain of hand pain, he testified that hand pain was not a diagnosis of RSD since there are a number of things which can cause hand pain. Dr. Roman in his deposition also indicated that some symptoms noted by other treating physicians simply were not present during his examination of the claimant. Notably, the opinion of Dr. Roman and Dr. Hanley was subsequently supported by a video introduced into evidence by the respondent. This video was reviewed by Dr. Roman and he submitted a follow-up report dated October 4, After reviewing the

9 9 surveillance video Dr. Roman stated that he stood by his assessment that claimant did not suffer from RSD and did not recommend treatment which had been recommended by Dr. Harbut for claimant s condition. Dr. Roman also addressed the video in his deposition and stated that according to the video claimant s hand was not in excruciating pain as had been previously described because claimant was able to touch and grab things. According to Dr. Roman, the pain described by Dr. Harbut in his report was not correlated by the video evidence. Q. Okay. We re about finished. Now, you also reviewed some surveillance video of Mr. Rude opening some doors. He was carrying things, going in and out of his home. Do you remember watching those videos? A. Yes. Q. How did that affect your opinion that Mr. Rude does not have RSD or CRPS? A. Well, yeah, I mean, so they followed the gentleman, and he - - if you took my impression of the patient and you looked at the surveillance video, you d say, okay, what Dr. Roman said about this gentleman is correct. His hand was not - - he wasn t in excruciating - - you know, it s not like he couldn t touch or grab anything. When you manipulate and touch someone s hand when you examine them, RSD, they re going to be - - a lot of times they re going to pull back and say don t - - that hurts, that s very hypersensitive. You can t just grab their hand sometimes. And they re also not going to, you know, have their clothes in one hand, and a phone or a drink in the other. Q. Okay. You know, when you look at Dr. Harbut s description where he describes the severe, excruciating pain, that in no way correlates to the surveillance video. The two don t - - you don t have this video and this physical exam by a physician. So Harbut s exam and this surveillance report cannot be the same. I mean, there s a differential here that s obvious, and it s grossly obvious. It s not a slight difference. A. So the surveillance video - - if I examined this gentleman and I had the diagnosis that Dr. Harbut had, and you showed me this video, I d be shocked. I d be,

10 10 like, how did I miss - - whoa, that doesn t make any sense. But if I did the exam I have and I looked at this, I d say, well, yeah, of course, this gentleman does not have RSD. He should be able to grab - - open his car door with his right hand, grab his phone or his drink. Q. Okay. So the surveillance video confirmed your opinion that he does not have RSD? A. The surveillance video strongly supports my opinion on his diagnosis, as well as the other doctor who also said did not have RSD. Based upon the evidence presented, I find that the opinion of Dr. Roman is entitled to the greatest weight in this case. Claimant has been evaluated by a number of physicians who have addressed the issue of CRPS. However, only one of those physicians, Dr. Roman, has evaluated the claimant and reviewed the surveillance video. According to Dr. Roman, the surveillance video does not reflect the claimant having excruciating pain in his right hand as prescribed by Dr. Harbut and claimant is able to grab and touch various objects. Indeed, a review of the video reveals that claimant as able to hold a bag, clothes, cell phone, flip through mail, open a car door, close a truck door, and carry a cup with his right hand. Based upon the fact that Dr. Roman is the only treating physician who has had the benefit of reviewing that video, I find that his opinion is entitled to the greatest weight in this case and accordingly based upon his opinion find that claimant has failed to meet his burden of proving by a preponderance of the evidence that he suffers from complex regional pain disorder or reflect sympathetic dystrophy as a result of his compensable right shoulder injury of April 28, Therefore, any treatment proposed for that condition is not reasonable and necessary. With respect to the deposition of Dr. Roman, it should be noted that claimant s attorney was only given one day s notice before the scheduled deposition, and as a result Dr. Roman s deposition was taken without the presence of claimant s attorney. I have blue-backed and introduced as a part of the record in this case various s from the

11 11 respective parties as well as myself addressing this issue. Based upon the circumstances, claimant requested that Dr. Roman s deposition be excluded from evidence. By dated January 8, 2017, I denied the request to exclude Dr. Roman s deposition as too extreme of a penalty. In an effort to remedy this situation, I ordered the respondent to reschedule a continuation of Dr. Roman s deposition which would provide claimant with the ability to ask additional questions of Dr. Roman at that time. In addition, I also indicated that any of his deposition testimony which was based upon hypothetical questions not supported by the facts of the case would be given their appropriate weight. At the hearing, claimant s attorney reiterated the objection to Dr. Roman s deposition. However, claimant s attorney also admitted that she did not proceed with a follow-up deposition as permitted in the January 8, I do not find the introduction of Dr. Roman s deposition to be prejudicial to the claimant in this case except to the extent that his testimony contradicts claimant s contention. Dr. Roman had previously written two reports stating that it was his opinion that claimant did not suffer from CRPS as a result of the shoulder injury. Dr. Roman simply expounded upon that opinion at this deposition and excluding his deposition under the circumstances would be an extreme penalty; particularly, when claimant was given the opportunity to continue with the deposition and ask Dr. Roman questions. For this reason, the deposition of Dr. Roman has not been excluded from the record. Furthermore, even if Dr. Roman s deposition were excluded I would still find that his opinion in the two reports is entitled to greatest weight given his review of the video. Finally, I find that claimant has failed to meet his burden of proving by a preponderance of the evidence that he is entitled to additional temporary total disability subsequent to September 19, On that date, Dr. Cox after reviewing the MRI scan of September 14, 2016 stated that the MRI showed a normal rotator cuff and labrum. He also stated that no further treatment was needed for claimant s shoulder. Based upon Dr.

12 12 Cox s opinion as well as a lack of sufficient evidence that claimant suffered a total incapacity to earn wages due to his compensable injury after that date, I find that claimant has failed to prove entitlement to additional temporary total disability subsequent to September 19, ORDER Claimant has failed to prove by a preponderance of the evidence that he suffers from complex regional pain syndrome or reflex sympathetic dystrophy as a result of his April 28, 2015 right shoulder injury. Therefore, any proposed treatment for that condition is not reasonable and necessary medical treatment for his compensable injury. The respondents are ordered to pay the court reporter s charges for preparing the hearing transcript in the amount of $ IT IS SO ORDERED. GREGORY K. STEWART ADMINISTRATIVE LAW JUDGE