BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. E903190 JAMES STAFFORD, Employee JENKINS ENGINEERING, INC., Employer CHUBB GROUP, Insurance Carrier/TPA CLAIMANT RESPONDENT RESPONDENT OPINION FILED FEBRUARY 16, 2016 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. Respondents represented by LEE J. MULDROW, Attorney, Little Rock, Arkansas. STATEMENT OF THE CASE On November 19, 2015, the above captioned claim came on for a hearing at Fort Smith, Arkansas. A pre-hearing conference was conducted on October 14, 2015, and a pre-hearing order was filed on October 14, 2015. A copy of the pre-hearing order has been marked Commission's Exhibit No. 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 this claim. 2. On all relevant dates, the relationship of employee-employer-carrier existed between the parties. 3. The claimant sustained a compensable injury to his lumbar spine on March 11, 1999. 4. The claimant is entitled to a weekly compensation rate of $375.00 for temporary total disability and $281.00 for permanent partial disability. 5. All prior Opinions are final and res judicata and the law of the case. By agreement of the parties the issues to litigate are limited to the following:
2 1. Whether the claimant is entitled to additional medical treatment in the form of a compound cream. 2. Statute of limitations. 3. Whether claimant s attorney is entitled to an attorney s fee. The claimant's contentions are as follows: a. The claimant contends that additional medical benefits have been determined by his treating physicians to be appropriate; however, respondents have failed and refused to authorize said treatment. b. The claimant contends that his attorney is entitled to an appropriate attorney s fee since this injury occurred before the law was changed regarding entitlement to attorney s fees on controverted medical benefits. The respondents contentions are as follows: Respondents contend that for the last fifteen years the carrier has paid all reasonable, related, and authorized medical. On July 14, 2015, Utilization Review denied a medication prescription (Gabapentin POW). Three days later, on July 17, 2015, Utilization Review certified and approved a proposed lumbar epidural steroid injection. Respondents contend - based on Utilization Review - that certain medical treatment (medication) falls outside the scope of its obligations. The medical payment ledger reflects that claimant has religiously visited his doctor for treatment/evaluation. However, the company ledgers reflect at least one year during which claimant did not obtain medical treatment. Hence, the statue of limitations may have run. The claimant in this matter is a 64-year-old male who suffered a compensable back injury on March 11, 1999 while employed by the respondent. The claimant underwent surgical intervention at the hands of Dr. Robert Thompson in 1999. It appears that Dr. Thompson performed an L5-S1 laminectomy on the claimant. Medical records indicate that the claimant was experiencing chronic back pain and left leg pain with weakness of the left lower extremity. Dr. Thompson, who performed the claimant s surgical intervention, has since passed away. However, the claimant began to treat with Dr. Marvin Mumme. Medical
3 records introduced into evidence show that the claimant had been treating with Dr. Mumme for his compensable back injury since at least July 14, 2008. The claimant was seen on at least a yearly basis and continued with complaints of difficulties regarding his back and left lower extremity. On January 19, 2015 the claimant was again seen by Dr. Mumme. Following is history of present illness portion of that medical record: HISTORY OF PRESENT ILLNESS: This is a 63-year-old male who comes in for follow up. He has been seen yearly for his back. His surgeon no longer is living. He had residual weakness in his left lower extremity. He is status post lumbar laminectomy. He reports a change in the issues that he has with the left lower extremity and his weakness when trying to walk on his toes or his heels on the left and also giving way in his left gastroc. He notes loss of sensation in his left foot. PHYSICAL EXAMINATION: On examination, motor strength in his quad seems to be symmetric bilaterally. Flexation of his knees is symmetric bilaterally. He has weakness to toe raise or heel walk on the left side compared with his right side. IMPRESSION: Same. RECOMMENDATION: He will return on an as-needed basis. On April 1, 2015 the claimant again returned to see Dr. Mumme. Following is a portion of that medical record: This 64-year-old male comes in for evaluation of pain in the back going down his right lower extremity. His prior issues have been with his left side, he had surgery a number of years ago for a radiculopathy left lower extremity with some residual weakness on the left side. He now has severe pain over the past two weeks in his back and right lower extremity going down to the knee. The only position that he gets any relief is when he is lying down on his right side with a pillow between his knees. He cannot stand up and urinate, has to sit to urinate. He can tell when he needs to urinate and also when he needs to have a bowel movement. He has not additional symptoms with his left lower extremity. EXAM: He has positive straight-leg raising on the right, does not have positive crossed straight-leg raising. He has weakness in his quadriceps and hamstrings on the right
4 against resistence, intact quad and hamstrings on the left. He has minimal weakness plantar flexion, dorsiflexion of his left ankle; has slightly more weakness in dorsiflexion and plantar flexion on the right side. Distal pulses are palpable in both lower extremities. X-RAYS: None. IMPRESSION: Radiculopathy right lower extremity. RECOMMENDATION: The patient is placed on a Medrol Dosepak. This will be called into his pharmacy, Wal-Mart in Mansfield. He is to remain at bed rest as much as possible, and we are going to order an MRI scan of his back and I will see him back in the office after the MRI scan is completed. This is the first mention in the medical records provided to the Commission of the claimant having difficulties with his right lower extremity. As noted in Dr. Mumme s clinic note the claimant was sent for an MRI scan at Arkansas Medical Imaging. That MRI was performed on April 16, 2015. On April 22, 2015 the claimant was again seen by Dr. Mumme. Following is a portion of that medical record: This 64-year old male returns for followup MRI scan. He was seen on 04/01/15, with sever pain in his back and weakness of right lower extremity. He has previously had back surgery in 1999. Had some distal weakness on his left side. The MRI scan suggests L4-5 intrusion of the subligamentous disk protrusion at L4-5. He has moderate canal stenosis involving the L3-4 level and bilateral neuroforaminal stenosis at the L3-4 level on his MRI scan. EXAM: VITAL SIGNS: 172-pound, 5-foot-9-inch male. Blood pressure 129/82, pulse 124. MUSCULOSKELETAL: Examination reveals negative straight leg raising to 50 degrees bilaterally, lower extremities. Sitting is slightly positive straight-leg raising on the right. He has dorsiflexion and plantar flexion weakness on the left. He has intact ankle plantar flexion, dorsiflexion on the right side and flexion-extension on the right side but what is interpreted as slightly diminished. With reinforcement he has 1+ knee jerk on the right, 1+ ankle jerk on the right, 1+ knee jerk on the left, 0 ankle jerk on the left, which is previous status. IMPRESSION: Spinal stenosis. L3-4, and with foraminal stenosis lateral L3-4.
5 RECOMMENDATIONS: We have talked about an LESI. He is agreeable to do this. He was given a prescription for Norco 10/325, #30, one q.6 hours p.r.n. pain. Appointment with his primary care. We are going to make an appointment with Neurosurgery to see Dr. Johnson. This appointment will be set up. See him back on an as-needed basis. Medical records indicate that the claimant did receive LESI that were performed by Dr. Fisher and the claimant was referred to Dr. Johnson for a neurosurgery consultation for his difficulties regarding his back and right lower extremity. On June 1, 2015 the claimant was again seen by Dr. Mumme. Following is a portion of the clinic note from that visit: HISTORY OF THE PRESENT ILLNESS: This sixty-four-yearold male comes in for follow-up radicular symptoms right lower extremity from his right buttock down to his right knee. He had a lumbar epidural steroid injection with Dr. Fisher on May 13, 2015. It gave some benefit for about five days. The pain is back. It is relieved to some degree with Norco 10/325 using a half tablet. He has an appointment with Neurosurgery for the second of July. We are going to see about a repeat injection with Dr. Fisher and then will see Dr. Arthur Johnson on the second for possible consideration of surgery. This is not his workmen s compensation injury. His workmen s compensation injury involved the left side and this remains unchanged. I will see him back on a p.r.n. basis. His blood pressure today is 155/104, pulse 123, 172 pounds, 5 feet 9 inches tall. He is on Zestoretic for his blood pressure. He needs to be followed up by his primary care physician. On July 2, 2015 the claimant was seen by Dr. Arthur Johnson at the referral of Dr. Mumme. Following is a portion of the medical record from that visit: Claimant s Exhibit 1, Page 1: Chief Complaint Patient presents with LOW BACK PAIN LBP since march, he woke up in pain. He did some back exercises in bed and later he started having pain. He c/o right hip, anterior thigh to his knee, recently has started going down to his shin. Has burning, tinglin [sic] and numbness. Walking increases his pain, he uses a single cane. Has not had physical therapy, and one LESI by Dr. Fisher but it helped only for about 5 days.
6 Subjective: James H. Stafford is a 64 y.o. year-old [sic] male seen at the request of Mumme, Marvin E, MD who comes to us with a history of low back pain and pain going into the right lower extremity. He is status post lumbar discectomy at the L5-S1 level in 1998 with good results. He has gradually had onset of pain but in March of 2015 he woke up with severe pain in his right lower extremity [sic] he has tried some back exercises but the pain has not gotten any better. He did have one LESI treatment by Dr. Fisher that helped for approximately 5 days but has been unable to get a second injection schedule. [sic] The pain lasts months that started going down into the shin on the right side. He has not had problems with bowel or bladder incontinence. Dr. Johnson s medical report also discusses his plan for the claimant and states as follows: I have discussed the treatment options which I believe include physical therapy, rest, medication, steroid injections and surgery. Dr. Johnson at that time also prescribed a compound pain cream with Toradal 8% as part of the compounding cream and the claimant was referred to Dr. Fisher for additional LESI injections. It is the claimant s burden to prove that the medical treatment he has asked the Commission to authorize is reasonable and necessary medical treatment for his compensable injury. After review of the claimant s testimony and the medical records in this matter, it is clear that the claimant s difficulties centered around his back and his left lower extremity which included pain and loss of sensation. Those symptoms persisted for several years and were well documented by Dr. Mumme beginning at least in 2008. On January 19, 2015, the claimant was still experiencing those same difficulties as noted in Dr. Mumme s clinic note of that date. However, on April 1, 2015 the claimant begins to first complain of right lower extremity difficulties indicating they began two weeks prior to that visit. At this point the claimant begins with LESI injections and more often visits to Dr. Mumme with an eventual referral to Dr. Arnold for his difficulties. Dr. Mumme has treated the claimant for many years and in his June 1, 2015 clinic note states, This is not his workman s compensation injury. His workman s compensation
7 injury involved the left side and this remains unchanged. It is clear that Dr. Mumme, even after having reviewed a diagnostic test in the form of an MRI, believes that the claimant s current symptoms and difficulties are unrelated to his compensable back injury which the claimant sustained in 1999. After review of Dr. Johnson s medical records, I find no reference or opinion from Dr. Johnson regarding the causation of the claimant s current difficulties, nor any opinion as to whether or not these difficulties relate to his compensable back injury of 1999. Given the claimant s long history with Dr. Mumme, it appears to me that Dr. Mumme is in the best position to determine whether or not the claimant s current course of treatment is related to his compensable injury and it is certain that he believes that it is not. As such, the claimant has failed to prove that the compound cream and epidural steroid injections are reasonable and necessary medical treatment for his March 1999 compensable back injury. The Commission was also asked to determine whether the statute of limitations barred the claimant from seeking additional medical treatment in this matter. However, that issue is now moot in that the claimant has failed to prove that the treatment he is currently seeking is reasonable and necessary medical treatment for his compensable injury. 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 witness and to observe his demeanor, the following findings of fact and conclusions of law are made in accordance with A.C.A. 11-9-704: FINDINGS OF FACT & CONCLUSIONS OF LAW 1. The stipulations agreed to by the parties at the pre-hearing conference conducted on October 14, 2015, and contained in a pre-hearing order filed October 14, 2015, are hereby accepted as fact.
8 2. The claimant has failed to prove by a preponderance of the evidence that he is entitled to additional medical treatment in the form of a compound cream and epidural steroid injections. 3. The issue regarding the statute of limitations is moot. 4. The claimant has failed to prove by a preponderance of the evidence that his attorney is entitled to an attorney s fee in this matter. ORDER Pursuant to the above findings and conclusions, I have no alternative but to deny this claim in its entirety. If they have not already done so, the respondents are directed to pay the court reporter, Veronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. IT IS SO ORDERED. ERIC PAUL WELLS ADMINISTRATIVE LAW JUDGE