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Wright Steel & Machine, Inc. v. Heimer

Court of Appeals of Arkansas, Division I

November 29, 2017



          Frye Law Firm, P.A., by: William C. Frye, for appellants.

          Tolley & Brooks, P.A., by: Evelyn E. Brooks, for appellee.


         Appellants Wright Steel & Machine, Inc., and Security National Insurance Company appeal from the decision of the Arkansas Workers' Compensation Commission (Commission) finding that appellee James Heimer had proved entitlement to additional medical treatment in the form of back surgery. Appellants argue that the Commission's decision is not supported by substantial evidence. We affirm.

         Heimer began working for Wright Steel & Machine, Inc., in 2005 as a welder/fabricator. He said that his job required heavy lifting on a daily basis of an average of 50 to 100 pounds. Although the injury at issue here occurred in 2015, Heimer's medical records reflected a history of back pain dating back to at least 2009. In December 2009, Heimer saw his family physician for low back pain and numbness going down his left leg. He was referred to another doctor and received injections. Heimer eventually had surgery on both his neck and low back in 2012. He was off work for a few months to recover after his surgeries. Medical records from October 2012 showed that Heimer was doing "quite well" after his back surgery, that he had no significant leg pain remaining, that he had met all of his physical-therapy goals, and that he was released to full activity. Heimer said that he returned to his regular duties but started getting sore again about a year after surgery. He had what he called "normal aches and pains" in his back due to the heavy lifting and pain in his hip and thigh. He had prescriptions for pain medications for his low back and neck but said that he took them only when needed, which was not every day. He acknowledged having to miss work on occasion due to his pain. Medical records showed that he was seen by three doctors in 2014 for neck pain, back pain, and joint pain. Before his May 2015 injury, the last complaint of back pain in his medical records was from December 2014.

         Steve Wright, one of the owners of Wright Steel & Machine, Inc., testified that Heimer seemed to do well immediately following his 2012 back surgery but later suffered a decline in his well-being and productivity. Wright said that it was obvious Heimer was in pain, that his pain medication affected his work, and that Heimer sometimes decided to go home due to the pain. Wright said that Heimer worked up until the May 2015 injury but he had missed a considerable amount of work.

         Heimer testified that on May 6, 2015, after lifting heavy steel, he "went down" and experienced pain like never before. The pain was in his lower back, radiating down his left leg to his foot. He said that before this injury, he had pain in his thigh and around his hip, but he had not had this kind of leg pain and numbness into his foot since his 2012 surgery. Heimer reported his injury and saw a doctor the next day. He eventually had injections and two rounds of physical therapy but obtained no lasting relief. Heimer testified that he could no longer perform his job or activities like using a riding lawnmower.

         In July 2015, Heimer was referred to Dr. Cathey for an independent medical evaluation. After examining Heimer and reviewing an MRI from June 2015, Dr. Cathey opined that Heimer was not a candidate for additional spinal surgery or other neurosurgical intervention. Dr. Cathey believed that Heimer had chronic degenerative lumbar disc disease and would likely suffer acute exacerbations in the future, but he was at maximum medical improvement with regard to the May injury. Heimer's condition did not improve, and he received a change of physician to Dr. Blankenship. Dr. Blankenship examined Heimer in November 2015 and noted his complaints of low back pain that radiated to his left hip, buttock, and groin and pain and numbness down his left leg to his foot. Dr. Blankenship informed Heimer that he disagreed with Dr. Cathey and believed that surgery, specifically an anterior lumbar interbody arthrodesis at the lumbosacrum, had a good chance of affording him relief. If Heimer elected to do the surgery at the L5-S1 level, Dr. Blankenship also recommended doing surgery at the L4-L5 level.

         In his deposition, Dr. Cathey testified that there were different schools of thought regarding whether the surgery offered by Dr. Blankenship would alleviate any pain for a patient like Heimer, but Dr. Cathey did not believe it would. Furthermore, he testified that the proposed surgery would address preexisting degenerative operative changes in Heimer's lower back, not his occupational injury. Dr. Cathey saw no objective findings of an acute injury that had taken place in May 2015 and noted that Heimer's preinjury medications indicated that he had not been doing well before May 2015.

         Dr. Blankenship testified in his deposition that he examined Heimer, took x-rays, and read the report of the June 2015 MRI. Dr. Blankenship said that Heimer had indicated to him that his 2012 back surgery had addressed pain in his right leg, not his left leg; Dr. Blankenship did not have the operative note when he saw Heimer.[1] Dr. Blankenship was unaware that Heimer had seen doctors as far back as 2009 with left-leg pain complaints similar to what he presented to Dr. Blankenship. He did not know how long Heimer had been on pain medication, but he did not consider the pain medicine Heimer was taking to be an extensive amount. He said that patients who are stable and manage their pain on medication can be considered to be doing well. Dr. Blankenship said that he still would have offered the surgery if he had known these things when he evaluated Heimer.

         When questioned by appellants' attorney regarding whether Heimer's condition was new or preexisting, Dr. Blankenship said that based on the new information about Heimer's prior left-leg pain, it would be difficult to state "when did it actually occur" without having the benefit of talking with the patient. Dr. Blankenship noted that there was an indication in Heimer's 2015 MRI that there had been some worsening and that he had annular fissuring, which was a tear in the lining around the disc space, but he did not have the older MRI to compare it to. Dr. Blankenship said that with the newer information, it was difficult to state whether the annular fissuring was related to the incident. He said that the fact that Heimer was not pain free before the injury did not preclude the fact that his injury may be the reason he needed treatment, but it clouded the issue significantly to the point he could not say one way or the other.

         Under examination by Heimer's attorney, Dr. Blankenship agreed that the June 2015 MRI showed an annular tear, which could have been caused by trauma, and that the radiologist who read the MRI opined that Heimer's moderate bilateral neural foraminal narrowing had worsened. Heimer's attorney then asked Dr. Blankenship for a conclusion about the May 2015 injury based on the history of Heimer's returning to work after recovering from his 2012 surgery and doing heavy lifting from 50 to 120 pounds on occasion. Dr. Blankenship stated that

there's not much doubt in my mind that the gentleman's need for further treatment occurred as a result of that injury because, as Dr. Ceola had ...

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