Foster v. Kann Enterprises

350 S.W.3d 796, 2009 Ark. App. 746, 2009 Ark. App. LEXIS 961
CourtCourt of Appeals of Arkansas
DecidedNovember 11, 2009
DocketCA 09-299
StatusPublished
Cited by5 cases

This text of 350 S.W.3d 796 (Foster v. Kann Enterprises) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. Kann Enterprises, 350 S.W.3d 796, 2009 Ark. App. 746, 2009 Ark. App. LEXIS 961 (Ark. Ct. App. 2009).

Opinion

LARRY D. VAUGHT, Chief Judge.

|,In this appeal from an order of the Arkansas Workers’ Compensation Commission, appellant Bryan Foster claims that the Commission erred in its refusal to require his employer, appellee Kann Enterprises, to provide additional medical care as recommended by his treating physician. We affirm in part and reverse in part.

It is undisputed that Foster sustained a compensable injury on April 2, 2006, when he was hit by a falling pallet, which first hit his head and then slid down the left side of his body. According to the “First Report of Injury or Illness,” Foster injured his head, hip, shoulder, neck and knee. On the day of the accident, Foster was admitted to the hospital where a CT scan of his head, brain, and cervical spine were performed. X-rays were taken of his cervical spine and pelvis. All were normal.

(Foster was treated for a scalp laceration and headaches and for problems with his neck, left hip, left knee, and left hamstring. Two days later, Foster was sent to the company doctor, Dr. Mark Gabbie, who treated the injuries with medication and physical therapy. Dr. Gabbie diagnosed post-traumatic headaches and radi-cular pain and paresthesia in the left shoulder. Foster underwent a cervical MRI on May 18, 2006. That study showed:

There is minimal bulging across the canal anteriorly at C3-4 creating mild compression of the subarachnoid space and minimal compression of the takeoff of the left neural sheath.

After the MRI, Dr. Gabbie concluded that Foster “does have spasms in the parasca-pula area on the left, [and] painful range of motion. We will try PT. If not better [he] will need injections.” Following this diagnosis, Foster attended physical therapy (at the direction of Dr. Gabbie) for treatment of the muscles in his neck and shoulders and for the left hamstring sprain. The physical therapist noted that Foster was having the following problems:

Chief complaint is that a knot comes up from his shoulder blade and spine. He has headaches and reports tremors to his left hand. He also states that his left knee gives way at times. He has not had any surgery. He describes his pain as sharp primarily to his hip and knee also with pain radiating to his left shoulder and forearm.

Ultimately, physical therapy proved ineffective and difficult for Foster. The record demonstrates that he missed several therapy appointments due to pre-existing problems (including bipolar disorder and effects of sleep medication) and that he was ultimately unable to continue with an at-home therapy regime.

On October 6, 2006, Dr. Gabbie “terminated all treatment.” However, the termination of treatment was not accompanied by a maximum-medical improvement finding. The record ^suggests that Dr. Gab-bie “fired” Foster as a patient because he was not compliant with the prescribed physical-therapy regimen and was no longer an employee of the company where Dr. Gabbie served as the corporate physician. Important to our analysis is the fact that Dr. Gabbie did not attempt the injection-therapy treatment option during the pen-dency of his doctor-patient relationship with Foster.

Following the “firing” by Dr. Gabbie of him as a patient, Foster requested that he be given a new treating physician; a change of physician request was granted by the Workers’ Compensation Commission. Dr. Thomas M. Hart, an interventional spine specialist regimen, was selected as Foster’s new doctor. After examining Foster on September 28, 2007, Dr. Hart authored a detailed medical assessment that identified three areas of concern and made treatment recommendations for each.

According to Dr. Hart, Foster was experiencing continuing difficulty with his neck, shoulder, and head. With regard to the neck injury, Dr. Hart made the following recommendation:

Basically I had a long discussion with Mr. Foster, first of all it sounds like he has sustained a hyperextension, hyper-reflexion injury, i.e., whiplash. When a pallet hits you on the head it whiplashes your neck and you can have continuing neck pain complaints. An MRI did indicate a disc bulge but as I indicated to Mr. Foster at his age I would be extremely reluctant to perform a cervical discography. If we found an abnormal disc, then the question is what do you do with it. Most good surgeons would not want to fuse it. It would be more risks than benefits and it may lead to further surgeries in the future. ■
My suggestion to a degree of medical certainty and probability is very simple and straight forward which has not been done but was suggested by his previous physician, “if not |4better will need injection!,”] i.e., Dr. Gabbie, is line him up for a properly performed per medial branch approach for a left cervical facet injections. If performed properly under fluoro and it does reduce his neck pain complaints short term and he continues to improve with the anti-inflammatories, obviously leave it alone. If he gets short term relief but no long term benefit, then the standard of care is radio frequency. This is a minimally invasive, outpatient, nonsurgical procedure. It is not a cure. There is no cure, but it may provide more long term benefit for his neck pain complaints so he can continue his activities. Obviously if the facet injections are not beneficial then we will not consider radio frequency denervation.

As to Foster’s complaint of head injury, Dr. Hart noted that he was “not a neurologist,” but opined that Foster may “have continuing post traumatic stress headaches from his injury to the head” and recommended a referral to Reginald Rutherford, M.D., for “a neurological evaluation and also consideration for EMG and nerve con-ductions to rule out any other ominous type pathology and discuss the possible tremors in the left hand and his continuing visual disturbances.” Finally, with regard to Foster’s complaint of shoulder pain and tenderness, Dr. Hart noted that Foster “has not had an orthopedic evaluation” and recommended a referral “to Dr. Scott Bowen for an orthopedic shoulder evaluation and get his opinion.”

Kann Enterprises refused to accept responsibility for the myriad additional testing and treatment recommended by Dr. Hart. The Commission considered the matter and concluded that Foster failed to prove that the additional treatment and referrals recommended by Dr. Hart were reasonable and necessary in connection with his compensable injury. It is from this decision that Foster now appeals to our court. He urges reversal based on the claim that the Commission’s decision is not supported by substantial evidence.

Although our state’s workers’ compensation laws require employers to provide such medical services as may be reasonably necessary in connection with a compensable injury |fisustained by the employee, injured employees must prove that medical services are reasonably necessary by a preponderance of the evidence. Ark. Code Ann. § ll-9-508(a) (Repl.2002). The determination of precisely what constitutes reasonably necessary treatment is a question of fact for the Commission. Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996).

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Bluebook (online)
350 S.W.3d 796, 2009 Ark. App. 746, 2009 Ark. App. LEXIS 961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-kann-enterprises-arkctapp-2009.