LOOAY AL-KHAZALY, Applicant
KRUEGER INTERNATIONAL, Employer
FEDERAL INSURANCE CO, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on December 28, 2005. Krueger International and Federal Insurance Company c/o GAB Robins N America, Inc. (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are the nature and extent of disability and liability for medical expense attributable to a conceded low back injury occurring on February 13, 2003.
The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:
The applicant continued to complain of low back and right leg pain, and a lumbar MRI was performed on February 19, 2003. It was read as normal, except for what appeared to the radiologist to be a swollen or enlarged nerve root at L4-5. A second lumbar MRI performed on February 26, 2003, identified a "nodule" that was suspected to be a neurogenic tumor at L2-3, as well as the nerve root anomaly at L4-5. Dr. Brantmeier referred the applicant to Dr. Kris Chan.
Dr. Chan began conservative treatment on March 6, 2003, and noted that the applicant's effort in clinical testing was poor, but also noted low back muscle spasm. Dr. Chan ordered a lumbar myelogram and post-myelogram CT scan on April 7, 2003. These procedures identified two masses resembling tumors, one at L4-5 and the other at L2-3. On June 24, 2003, Dr. Chan performed a laminectomy at L4 to explore the nerve root. He took a biopsy of the L4 neuroma that he found in the surgery, and it was subsequently identified as being a ganglioneuroma.
The applicant's symptoms worsened after the surgery, and Dr. Chan referred him to Dr. Joan Van Sloun for an epidural steroid injection that did not provide any relief. In a clinic note dated March 4, 2004, Dr. Chan indicated the applicant complained of both right and left leg pain, as well as left arm and shoulder pain. Dr. Chan also noted that the applicant had adopted the use of a cane. Also on March 4, 2004, Dr. Chan found a plateau of healing and imposed sedentary work restrictions. On May 19, 2004, Dr. Chan completed a WKC-16-B in which he diagnosed a ganglioneuroma, assessed work causation in the form of aggravation/acceleration of a preexisting condition, and assessed 5 percent permanent functional disability of the whole body.
The applicant's attorney sent the applicant to Dr. Jerome Lerner for another evaluation. Dr. Lerner is a physical medicine, rehabilitation, and pain management specialist. He saw the applicant on May 5, 2004, and noted complaints of constant and severe low back pain, inability to sleep more than two hours per night, and right leg pain with paresthesia. Dr. Lerner diagnosed a work-related acute low back sprain that he believed continued to cause the applicant's low back pain. He did not believe the ganglioneuroma was causing back pain, but that it was probably causing diminished right knee reflex and the right leg paresthesia. Dr. Lerner assessed 4 percent permanent functional disability attributable to the effects of the severe low back sprain. He opined that the June 2003 surgery was performed as a consequence of the work injury, because it was needed as a diagnostic procedure. Finally, Dr. Lerner opined that the applicant is "severely impaired," but with the help of a chronic pain program, he could hopefully resume sedentary to light work.
Dr. Brantmeier completed a WKC-16-B dated August 25, 2004, in which he found work causation and referred the reader to his clinic note of February 19, 2003. That note recounted the work incident and resulting low back pain and right leg pain/numbness. It diagnosed a low back injury with possible disc herniation.
On May 7, 2003, Dr. Richard Karr examined the applicant at respondents' request. In his report dated May 9, 2003, Dr. Karr recounted the work incident and subsequent medical treatments. He commented that the applicant's physical exam revealed marked, non-organic pain behavior. Dr. Karr diagnosed a right L4 nerve root lesion of uncertain etiology but unrelated to the work incident. He also diagnosed a lumbar strain occurring on February 13, 2003, with no aggravation of the preexisting nerve root pathology and no permanent disability. He emphasized the applicant's flagrant exaggeration of symptoms and indicated a healing plateau had been reached.
Additional records were provided to Dr. Karr subsequent to the June 2003 surgery, and Dr. Karr submitted a second report dated April 6, 2004. He noted that the surgery revealed a primary nerve root tumor with no evidence of traumatic injury, no disc bulge or herniation, and no synovial cyst. Dr. Karr opined that the ganglioneuroma was preexisting and unrelated to the work incident, which he believed amounted to a lumbar strain with a healing plateau reached by May 7, 2003. He found no permanent disability. He opined that the surgery was caused by the preexisting tumor and was not causally related to the work incident. He further opined that the applicant's ongoing symptoms are related to the tumors at L2-3 and L4, as well as to the effects of the surgery. Dr. Karr noted that both Dr. Chan and Dr. Van Sloun had found evidence of non-organic pain behavior in the applicant's clinical presentations, consistent with his own observations. He restricted the applicant to maximum lifting of 40 lbs., repetitive lifting of 20 lbs., and no repetitive or prolonged bending in excess of 45 degrees. He attributed these restrictions to the effects of the nonindustrial conditions.
A surveillance video shows the applicant walking without a cane and without any noticeable limp the morning of July 7, 2005, but limping badly with a cane three hours later when he reported for his interview with respondents' vocational expert. No physician ever prescribed a cane. Prior to the showing of the video the applicant testified that since the August 2003 surgery he had always used a cane to get around. He attempted to explain the video by asserting that his psychiatrist, who treats him for an unrelated depression, advised him to try to walk without a cane.
Based on Dr. Karr's observations, the videotape evidence, and Dr. Chan's comments concerning the applicant's "poor effort" during clinical testing, the applicant's credibility is poor. The commission infers that he has consistently exaggerated his symptoms, and continues to do so. However, a compensable injury was conceded by the respondents and diagnosed by Dr. Karr as a lumbar strain. It is accepted that the applicant did experience some pain symptoms as a result of this work-related lumbar strain, and that at least in substantial part these symptoms led to the MRI and CT scan procedures that identified an anomaly at L4. Dr. Lerner credibly opined that in this context, the surgery was essentially a diagnostic procedure. It was performed in response to the applicant's continuing low back pain attributable to an undisputed work injury, as well as to the MRI and CT scan results. If the work injury had not occurred, the MRI and CT scan would not have been ordered when they were, and the surgery would not have been performed when it was. Accordingly, the commission infers that in substantial part, the applicant's surgery was performed as diagnostic treatment for an undisputed compensable injury. (1) The cost of the surgery is compensable.
As noted by Dr. Karr, the surgery did not identify any work-related pathology. The ganglioneuroma was a primary tumor unrelated to, and unaffected by, the lumbar strain the applicant sustained on February 13, 2003. Dr. Chan checked the box on his May 2004 WKC-16-B indicating that the ganglioneuroma had been precipitated, aggravated, and accelerated beyond its normal progression by the work incident. However, he failed to articulate any medical reasoning for this opinion, which the commission finds incredible. Dr. Lerner distinguished between what he believed were the effects of a severe lumbar strain, and right leg symptoms he attributed to the ganglioneuroma. He did not indicate that the ganglioneuroma had been aggravated by the work incident. Dr. Karr credibly opined that the work incident did not affect the ganglioneuroma at L4, which together with the nerve-root tumor at L2-3, were neoplastic conditions causally unrelated to the lumbar strain of February 13, 2003. He credibly opined that the lumbar strain did not result in any permanent disability.
Accordingly, the cost of the applicant's medical treatment from the date of his surgery through the date he recuperated from that surgery is compensable. His date of recuperation is found to have been August 18, 2003, as explained below. Medical treatment received subsequent to August 18, 2003, is not attributable to the applicant's work-related lumbar strain, and therefore is not compensable. It is unclear from the applicant's WKC-3 exactly how many of the claimed expenses were for medical care he received through August 18, 2003; but it is clear that the nonindustrial carrier, Humana, is due a substantial sum as reimbursement for surgical expenses that it paid Meriter Hospital. The Humana reimbursement claim is for a total of $13,998.37, but it is possible that some of this expense was for medical care subsequent to August 18, 2003. The commission will order immediate reimbursement to Humana of $10,000.00. The balance of the claims for reimbursement to Humana, and payment to providers due for the period of June 24, 2003 through August 18, 2003, shall be recalculated by the applicant and resubmitted to the insurance carrier. Thereafter, the insurance carrier shall make immediate payment/reimbursement of such claims, unless it has a reasonable basis to dispute the accuracy of the amount claimed.
A compensable consequence of the work-related, diagnostic surgery was the period of the applicant's disability during the surgery, and during recuperation from the surgery. On August 1, 2003, Dr. Chan indicated the applicant was still recuperating from the surgery but might be able to return to light work on August 18, 2003. On August 18, 2003, Dr. Brantmeier examined the applicant and did not indicate that any further recuperation from the surgery was necessary. He recommended additional treatment for the applicant's ongoing low back and right leg complaints. It is inferred from Dr. Karr's opinion that any such ongoing symptoms were not related to the applicant's lumbar strain occurring on February 13, 2003. Accordingly, additional temporary total disability shall be paid from June 24, 2003 through August 18, 2003, a period of exactly eight weeks at the applicable rate of $335.43 per week, for a total of $2,683.44. The applicant's attorney is entitled to a 20 percent fee.
NOW, THEREFORE, this
Jurisdiction is reserved only with respect to additional medical expense claims as explained in the above findings.
Dated and mailed April 27, 2006
alkhalo . wpr : 185 : 8 ND 5.50
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The administrative law judge dismissed the applicant's claim on the basis that he could not understand the applicant's testimony. However, the transcripts of the hearings are fully understandable, and there is no ambiguity with respect to how the applicant's work injury occurred or with respect to his other testimony.
cc:
Attorney Wallace McDonell
Attorney Patrick Condon
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