LVL, Inc. v. Ragsdale

• Decision Date: 23 February 2011
• Docket Number: No. CA 10–905.,CA 10–905.
• Parties: LVL, INC., and Chartis Insurance, Appellants v. Donald RAGSDALE, Appellee.
• Court: Arkansas Court of Appeals

2011 Ark. App. 144

381 S.W.3d 869

LVL, INC., and Chartis Insurance, Appellants

v.Donald RAGSDALE, Appellee.

No. CA 10–905.

Court of Appeals of Arkansas.

Feb. 23, 2011.

Melissa Faye Wood, Little Rock, for appellants.

Michael Scott Willhite, Jonesboro, for appellee.

RITA W. GRUBER, Judge.

[Ark. App. 1]LVL, Inc., appeals the Workers' Compensation Commission's June 1, 2010 decision that awarded Donald Ragsdale additional medical treatment related to his December 2006 compensable neck injury, which ultimately resulted in a cervical discectomy and fusion. LVL's sole point on appeal is that substantial evidence does not support the award of additional treatment recommended in 2009 by anesthesiologist Dr. Raymond Greaser, a specialist in pain management. We hold that substantial evidence does support the award; therefore, we affirm.

A claimant bears the burden of proving entitlement to additional medical treatment. Patchell v. Wal–Mart Stores, Inc., 86 Ark.App. 230, 184 S.W.3d 31 (2004). The claimant may be entitled to ongoing medical treatment after the healing period has ended if the treatment is geared toward management of the compensable injury. Id.Arkansas Code Annotated section 11–9–508(a) (Supp.2009) requires an employer to promptly provide for an injured employee such medical and surgical treatment “as may be reasonably necessary in connection [Ark. App. 2]with the injury received by the employee.” What constitutes reasonably necessary treatment is a question of fact for the Commission, which has the duty to use its expertise to determine the soundness of medical evidence and to translate it into findings of fact. Hamilton v. Gregory Trucking, 90 Ark.App. 248, 205 S.W.3d 181 (2005).

Ragsdale was employed by LVL as a driver of an eighteen-wheeler delivering mail between Newport, Arkansas, and Chicago. He injured his back, neck, and left shoulder on September 20, 2006, while he was trying to unhook the truck's trailer. On December 13, 2006, he was seen by neurosurgeon Dr. Robert E. Abraham for complaints of left upper extremity and neck pain “made worse with extension or looking to the left.” Findings of a cervical MRI included a large herniated nucleus pulposus described as “C6–7 large left greater than right HNP.” Dr. Abraham's report shows, in part, an assessment of left cervical radiculopathy, a plan for an operative procedure at C6–7, and a myelogram. Dr. Abraham noted on December 26 that the myelogram revealed “no dye at C6–7 on the left, ... C6–7 NHP with root and cord impingement.” Again assessing cervical radiculopathy, on January 3, 2007 he performed the C6–7 surgery, which included placement of bone allograft with anterior cervical plate, screws, and locking pins.

LVL paid total temporary disability benefits; medical benefits, including the cervical discectomy and fusion at C6–7 with internal fixation; and a twelve-percent impairment rating assigned by neurosurgeon Dr. Steven Cathey in a 2007 independent medical examination. In 2008 Ragsdale was granted a change of physicians from Dr. Abraham to Dr. Gregory Ricca for pain management. In May 2008 Ragsdale was referred to Dr. Greasey, who administered [Ark. App. 3]greater occipital nerve injections and cervical epidural injections over the following months.

In a letter of February 13, 2009, Dr. Greaser requested preauthorization for Phase I trials of spinal-cord neurostimulation therapy and peripheral-nerve-field neurostimulation therapy. The request was based on an “intractable, debilitating pain disorder” related to a diagnosis of headache, cervical post-laminectomy syndrome, cervical spondylosis, chronic pain, chronic postoperative pain, cervicalgia, and cervical radiculopathy. Dr. Greaser noted the organic origin of Ragsdale's chronic pain, its three-year duration, and the failure of the “protracted clinical course involving cumulatively costly, ineffective conservative therapies” to provide sustained, effective relief. Dr. Greaser concluded that “the cost of endless ineffective conservative therapies far exceeds investment in a spinal cord and peripheral nerve field neurostimulation systems or the effective treatment of this life-long chronic pain disorder.”

On May 4, 2009, Ragsdale underwent an independent medical exam by Dr. Terence P. Braden III, D.O., who had seen him in 2002 for bilateral hand paresthesia and pain when an EMG–NCV study performed on January 11, 2002, was positive for carpal tunnel syndrome. Subsequent medical notes indicated that carpal tunnel release could be scheduled at Ragsdale's convenience “as he has bilateral carpal tunnel syndrome worse on the left.” In the 2009 independent medical exam, Dr. Braden assigned a fifteen-percent permanent impairment rating for radiculopathy.

On October 23, 2009, the administrative law judge conducted a hearing on three issues: whether Ragsdale was entitled to additional benefits for his compensable neck injury; [Ark. App. 4]whether he also sustained bilateral carpal tunnel syndrome at the time of the neck injury; and whether Dr. Braden's anatomical impairment rating for the neck conformed with American Medical Association guidelines and Commission rules. Ragsdale's medical records were introduced into evidence at the hearing, and he was the only witness to testify.

Ragsdale testified that he had continued his employment with LVL since the time of his injury, a job that he valued and wanted to keep. Ragsdale stated that his duties included loading the trailer and driving the round-trip route to Chicago; that it was difficult to perform his job because of his headaches, neck pain, and loss of strength in the left arm; and that he was requesting the additional medical care to lessen the pain. He explained that he could not take narcotics because of driving, he had tried other pain medications, and nothing had both given him relief and allowed him to do his job. He said he understood the limitations that the stimulators would cause and felt he could return to work after the procedure.

Ragsdale denied having problems before the 2006 accident with his left hand or arm, numbness or tingling, or reduced strength or mobility of his left arm. He said that after surgery his neck movement was restricted but better than before surgery, his arm pain was not as bad as after the accident, pain occurred when he bent his hands a certain way, and he woke in the middle of the night with his hand numb. He testified that he had passed two DOT physicals since the surgery and in April 2008 had received a change of physicians to Dr. Ricca, who discussed with him his habit of smoking.

The law judge's opinion noted that LVL had accepted medical expenses, temporary total disability benefits, and Dr. Steven L. Cathey's twelve-percent rating. The opinion [Ark. App. 5]included these findings:

As I interpret the medical evidence, the claimant remains symptomatic from the compensable neck injury. Treatment for pain is a reasonable and necessary medical expense.

....

Based on the claimant's credible testimony and the opinions of Drs. Cathey, Abraham, and Braden, the claimant suffers from radiculopathy related to the compensable neck injury entitling him to treatment for pain which is a reasonable and necessary medical expense pursuant to Ark.Code Ann. § 11–9–508. Respondents are directed to pay for Dr. Greaser's treatment within thirty (30) days of receipt pursuant to Rule 099.30.

The law judge noted that both Dr. Braden and Dr. Cathey had found...