BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G207585 ASHLEY DOSS, Employee ARKANSAS DEPARTMENT OF VETERANS AFFAIRS, Employer PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier CLAIMANT RESPONDENT RESPONDENT OPINION FILED AUGUST 19, 2015 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 ROBERT H. MONTGOMERY, Attorney, Little Rock, Arkansas. STATEMENT OF THE CASE On July 22, 2015, the above captioned claim came on for a hearing at Springdale, Arkansas. A pre-hearing conference was conducted on June 11, 2015, and a pre-hearing order was filed on that same date. A copy of the pre-hearing 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/carrier relationship existed among the parties at all relevant times. 3. The claimant sustained a compensable injury to her left wrist on June 7, 2012. 4. The claimant was earning an average weekly wage of $314.00 which would entitle her to compensation at the weekly rates of $209.00 for total disability benefits and $154.00 for permanent partial disability benefits. At the pre-hearing conference the parties agreed to litigate the following issues: 1. Claimant s entitlement to surgery as recommended by Dr. Kelly.
2 The claimant contends that as a result of her compensable injury she is entitled to surgery as recommended by Dr. Kelly. The respondents contend that the claimant has received all reasonable and necessary medical treatment and that the claimant s need for surgery, if any, is not related to her compensable injury but rather to pre-existing, long-standing medical issues. 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. 11-9-704: FINDINGS OF FACT & CONCLUSIONS OF LAW 1. The stipulations agreed to by the parties at the pre-hearing conference conducted on June 11, 2015, and contained in a pre-hearing order filed that same date, are hereby accepted as fact. 2. Claimant has met her burden of proving by a preponderance of the evidence that she is entitled to additional medical treatment in the form of surgery as recommended by Dr. Kelly. FACTUAL BACKGROUND The claimant is a 23-year-old woman who began working for the respondent in May 2012 as a housekeeper. Claimant s job duties included sweeping, mopping, cleaning rooms, and scrubbing floors with a floor scrubber. For a six-month period of time while claimant was working for the respondent she was also working at City Hospital. Claimant testified that on June 7, 2012, she was in the process of getting on an elevator to go down to the first floor and as she was stepping onto the elevator the door began closing and struck her in the left wrist. Claimant testified:... it hit me with enough
3 impact that I fell to the floor and I was crying. I was in a lot of pain. Claimant testified that she reported the injury and completed paperwork the next day. Apparently, claimant did not seek any medical treatment for her left wrist until August 2012. On September 10, 2012, claimant underwent an MRI scan of her left wrist which revealed avascular necrosis with a collapse of the lunate bone consistent with Kienbock s disease. As a result of those findings, Dr. Henley, an orthopaedic surgeon, performed a radial shortening osteotomy procedure on October 3, 2012. Dr. Henley s medical reports indicate that claimant continued to complain of pain in her left wrist subsequent to the surgery. As a result, Dr. Henley performed a second procedure to remove hardware on August 28, 2013. On February 21, 2014, Dr. Henley assigned claimant a permanent physical impairment rating in an amount equal to 8% to the body as a whole for her left wrist and forearm. Following this rating by Dr. Henley respondent referred claimant to Dr. Kelly for a consultation based upon continued complaints of pain. Dr. Kelly s initial evaluation occurred on November 5, 2014. Dr. Kelly recommended that claimant undergo another surgical procedure and he also recommended that she undergo an EMG/NCV study to determine whether she needed nerve decompression to alleviate numbness. Claimant underwent the study on February 4, 2015, and it returned as normal. Following the study claimant again returned to Dr. Kelly on February 18, 2015, at which time Dr. Kelly opined that claimant s best option would include a left total wrist fusion procedure. Respondent accepted claimant s injury as compensable and paid compensation benefits including the surgical procedures performed by Dr. Henley. Respondent has not agreed to pay for surgery as recommended by Dr. Kelly. Accordingly, claimant has filed this claim contending that she is entitled to additional medical treatment in the form of surgery as recommended by Dr. Kelly.
4 ADJUDICATION Claimant has the burden of proving by a preponderance of the evidence that she is entitled to additional medical treatment for her compensable injury. Dalton v. Allen Engineering Co., 66 Ark. App. 201, 989 S.W. 2d 543 (1999). After reviewing the evidence in this case impartially, without giving the benefit of the doubt to either party, I find that claimant has met her burden of proof. In his report of November 5, 2014, Dr. Kelly discussed two possible surgical procedures. The first was proximal row carpectomy and the second was a complete arthrodesis. Following the claimant s EMG/NCV study, claimant returned to Dr. Kelly on February 18, 2015. Based upon his discussion with the claimant regarding her options, Dr. Kelly stated that claimant s best option would be a left wrist fusion procedure. In support of its contention that the fusion procedure proposed by Dr. Kelly is not reasonable and necessary treatment for claimant s compensable injury, respondent relies upon the opinion of Dr. Andersson. Dr. Andersson apparently reviewed the claimant s medical records and set forth her opinion in a letter dated May 14, 2015. Dr. Andersson indicated that claimant s diagnosis was a contusion to the wrist which resulted in an acute exacerbation of chronic/pre-existing Kienbock s disease. It was Dr. Andersson s opinion that the claimant s current symptoms were related to her pre-existing Kienbock s disease and not related to the work-related injury. Dr. Andersson did state that claimant should undergo a surgical procedure, but it was her opinion that the procedure was related to the claimant s pre-existing Kienbock s disease and not her work-related injury. First, I note that Dr. Andersson has acknowledged that claimant s work-related injury resulted in an acute exacerbation of her pre-existing Kienbock s disease. There is no indication that claimant suffered from any left wrist problems prior to the accident on June 7, 2012. Furthermore, Dr. Kelly discussed causation in his November 5, 2014 report. Specifically, he stated:
5 It is not uncommon with Kienbock s to have this type of collapse and in fact a lot of times people who have Kienbock s, when they present with pain is because they have had an acute collapse or a fracture of the lunate which brings on sudden onset of pain. I think this is exactly the picture that she had. I also find it important to note that other treating physicians, including Dr. Henley who performed two surgical procedures on the claimant s left wrist, also opined that claimant might need future surgery to address her work-related injury. In his report of January 21, 2013 Dr. Henley noted that if claimant continued to have symptoms she would have to consider further surgery. Specifically, in his report of March 4, 2013, Dr. Henley stated: I think it is more likely than not that she will need future surgery. This will be either proximal row carpectomy or wrist fusion. This may be a year from now, it may be 5 years from now. Dr. Henley again reiterated this opinion in his report of April 18, 2013. I am confident that she will need some sort of surgery in the future. She may require a total wrist fusion or proximal row carpectomy. This may be 6 months from now, or even a couple of years from now. As a result of claimant s continued complaints of pain, Dr. Henley recommended that claimant get a second opinion from Dr. Johnson. In a report dated July 8, 2013, Dr. Johnson indicated that Dr. Henley s plan is the same plan that he would recommend and more importantly, he also noted that a complete wrist fusion might be necessary in the future. I find that the opinion of Dr. Kelly is entitled to greater weight than the opinion of Dr. Andersson. First, Dr. Kelly has physically examined the claimant on two separate occasions while Dr. Andersson has simply reviewed medical records. Furthermore, Dr.
6 Kelly has recommended a fusion which in his opinion is causally related to claimant s work injury which aggravated her pre-existing Kienbock s disease. While Dr. Andersson has acknowledged that claimant suffered from a pre-existing condition of Kienbock s disease, it is her opinion that claimant s current complaints are causally related to the pre-existing condition, not the work-related aggravation. My review of the medical records does not indicate that claimant s injury in the form of an aggravation of the pre-existing Kienbock s disease has resolved. Further, Dr. Kelly s recommendation is supported by the opinions of Drs. Henley and Johnson who have previously indicated that a left wrist fusion might be necessary for treatment of claimant s compensable injury. Accordingly, based upon the foregoing evidence, I find that claimant has met her burden of proving by a preponderance of the evidenced that she is entitled to additional medical treatment in the form of surgery as recommended by Dr. Kelly. AWARD Claimant has met her burden of proving by a preponderance of the evidence that she is entitled to additional medical treatment in the form of surgery as recommended by Dr. Kelly. Pursuant to A.C.A. 11-9-715(a)(1)(B)(ii), attorney fees are awarded only on the amount of compensation for indemnity benefits controverted and awarded. Here, no indemnity benefits were controverted and awarded; therefore, no attorney fee has been awarded. Instead, claimant s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. 11-9-715(a)(4). The respondents are ordered to pay the court reporter s charges for preparing the hearing transcript in the amount of $371.30.
7 IT IS SO ORDERED. GREGORY K. STEWART ADMINISTRATIVE LAW JUDGE