Sea Ark Marine, Inc. v. Pippinger

303 S.W.3d 102, 2009 Ark. App. 223, 2009 Ark. App. LEXIS 287
CourtCourt of Appeals of Arkansas
DecidedApril 1, 2009
DocketCA 08-776
StatusPublished
Cited by1 cases

This text of 303 S.W.3d 102 (Sea Ark Marine, Inc. v. Pippinger) 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
Sea Ark Marine, Inc. v. Pippinger, 303 S.W.3d 102, 2009 Ark. App. 223, 2009 Ark. App. LEXIS 287 (Ark. Ct. App. 2009).

Opinion

ROBERT J. GLADWIN, Judge.

| Nhis appeal follows the May 13, 2008 decision of the Workers’ Compensation Commission (Commission) affirming and adopting the February 14, 2008 opinion of the Administrative Law Judge (ALJ), finding that appellee was entitled to the implantation of the dorsal-column stimulator if additional testing and examination showed it to be necessary. On appeal, appellants argue that the Commission failed to hold appellee to his statutory burden of proof by awarding additional medical care while simultaneously opining that he needed to return to the doctor for further evaluation before that care could be deemed reasonable and necessary. We agree and reverse and remand.

Appellee, age sixty-two, injured his left foot and ankle on May 1, 2004, after becoming entangled in some hoses and falling from a large boat at the SeaArk Marine 12production facility. Appellee was diagnosed with a comminuted and compressed fracture of the left calcaneus bone. Orthopedic surgeon Dr. John Lytle performed surgery with external fixation (plates & screws) on May 26, 2004, but appellee developed reflex-sympathetic dystrophy (RSD) of the left-lower extremity.

In his report of September 2, 2004, Dr. Lytle noted evidence of RSD with atrophy, red glow, and shiny skin. A report dated September 9, 2004, reflected symptoms of atrophy, change in hair pattern, hyperhi-drosis, and temperature changes. A recommendation was made for confirmation with diagnostic studies. On September 13, 2004, a laser-doppler study was performed, which was negative, but a triple-phase-bone scan was positive and an EMG/NCV study was abnormal. Appellee received treatment to desensitize the sear. Physical therapy improved, but did not eliminate, his pain.

Appellee began treatment with Dr. William Ackerman for continuing pain and RSD in September 2004. Dr. Ackerman also ordered physical therapy, which ap-pellee completed with Nat Grubbs. Based on his reports of September 13, 2004, and October 28, 2004, Dr. Ackerman determined there had been a resolution of the RSD, and he released appellee from his care. However, Dr. Ackerman wanted ap-pellee to see a foot and ankle surgeon for the removal of the hardware, and on November 29, 2004, appellee returned due to pain and explained to Dr. Ackerman that he was “unable to see Dr. Thomas, the chief of foot surgery at UAMS,” because he had seen a “surgeon picked by the workers’ compensation.” That ^surgeon was Dr. Larry Nguyen, and he first examined appellee on November 19, 2004. Dr. Nguyen continued appellee’s physical therapy into December 2004.

On February 15, 2005, Dr. Nguyen surgically removed the hardware previously implanted by Dr. Lytle. The second surgery did not improve appellee’s RSD symptoms but did improve the pain. During surgery, Dr. Nguyen clipped, or freed, a nerve trapped in scar tissue (a sural-nerve resection), which had left the side of appellee’s foot numb. On March 30, 2005, Dr. Nguyen released appellee and rated appellee’s impairment at twenty-one percent to the lower extremity, stating that maximum-medical improvement from the orthopedic standpoint had been reached. He warned, however, that appellee would require additional surgery, fusion with al-lograft, sometime in the future.

Before he closed his local practice and relocated out of the state, Dr. Ackerman saw appellee for the last time on June 14, 2005, and indicated that the regional-pain syndrome had resolved, but that appellee would be entitled to an impairment rating possibly based on his RSD. Dr. Ackerman recommended a laser-doppler study to determine whether appellee had additional symptoms of RSD, but that test was not approved by appellant AIG Claim Services, Inc., (Carrier). On November 16, 2005, Dr. Nguyen suggested a referral to Dr. Mahmood Ahmad, so that he could take over where appellee’s treatment with Dr. Ackerman had ended.

^Carrier agreed to send appellee to Dr. Ahmad for an initial visit to evaluate his RSD. Appellee was seen by Dr. Ahmad on August 4, 2006; however, Carrier did not approve anything beyond the first doctor’s visit. Dr. Ahmad authored a letter dated June 27, 2007, indicating that while RSD can wax and wane, it cannot be cured. He opined that appellee needed additional pain treatment and was a candidate for a spinal-cord-stimulator trial. Appellee then saw Dr. Whipple on August 21, 2007. Dr. Whipple also recommended additional diagnostic testing (an MRI scan), which Carrier to date has not authorized. Dr. Whipple noted coolness in appellee’s left foot and his restricted range of motion. Appel-lee complained of pain in his foot and back at that time.

Medical expenses, temporary-total-disability benefits, and the twenty-one-percent impairment rating, assessed by Dr. Larry Nguyen in his report of March 30, 2005, were accepted. Additionally, appel-lee receives social-security-disability benefits.

A hearing was conducted on November 16, 2007, before ALJ Elizabeth W. Hogan, to determine appellee’s entitlement to payment of additional medical expenses and attorney’s fees. At issue was whether or not additional medical treatment is reasonable and necessary pursuant to Arkansas Code Annotated section 11-9-508 (Supp. 2007). In her opinion dated February 14, 2008, the ALJ noted that she found appel-lee to be a credible witness who has cooperated with his physicians and treatment. She found that he is entitled to continuing medical treatment with Dr. Ahmad and, if ultimately Dr. Ahmad needs to |fiimplant a stimulator, that would be a reasonable and necessary medical expense. She noted Dr. Ackerman’s diagnosis of “complex regional pain syndrome,” formerly known as RSD, after diagnostic testing and noted that there was no evidence presented that ap-pellee is malingering. The ALJ also noted Dr. Ahmad’s opinion that, although appel-lee’s pain syndrome may wax and wane, it cannot be cured. She determined that appellee will need follow-up pain management for the rest of his life. The ALJ made a specific finding that, because Dr. Ahmad did not have all of appellee’s medical records at the time of the initial evaluation, Dr. Ahmad needs to reevaluate appel-lee before proceeding; but she noted that a stimulator implant is the preferred course of treatment. She specifically found that this pain-management treatment is reasonable and necessary to address pain and to stop the syndrome from progressing.

Appellants filed a timely notice of appeal to the Commission on February 27, 2008, and on May 13, 2008, the Commission affirmed and adopted the decision of the ALJ. Timely notice of appeal was filed on June 12, 2008, and this appeal followed.

Typically, on appeal to this court, we review only the decision of the Commission, not that of the ALJ. Daniels v. Affiliated Foods Sw., 70 Ark.App. 319, 17 S.W.3d 817 (2000). In this case, the Commission affirmed and adopted the ALJ’s opinion as its own, which it is permitted to do under Arkansas law. See Death & Perm. Total Disab. Trust Fund v. Branum, 82 Ark.App. 338, 107 S.W.3d 876 (2003). Moreover, in so doing, the | ^Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes of our review, we consider both the ALJ’s order and the Commission’s majority order.

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Bluebook (online)
303 S.W.3d 102, 2009 Ark. App. 223, 2009 Ark. App. LEXIS 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sea-ark-marine-inc-v-pippinger-arkctapp-2009.