| iAppellant Walgreen Company
We review decisions of the Workers’ Compensation Commission to determine whether there is substantial evidence to support them. Rice v. Georgia Pacific Corp.,
The ALJ heard this claim in Novembеr 2010. Goode testified first. He stated that he was forty-four years old and 6' 3" tall. Goode acknowledged that when he was in high school, he suffered lumbar hernia-tions at L4-5 and L5-S1 that required surgical intervention in 1984. He admitted that he had intermittent low-back pain since that time; he said he sought chiropractic care when he had muscle or back pain after 1984.
Gоode became a licensed pharmacist in 1990. He worked other jobs in his family’s businesses (a mortgage company, a manufactured home outlet, and a pest control service) as well as in pharmacies over the next several years. Goode’s pharmacy license was not current when he was hired by Walgreen on July 31, 2006. To get his licеnse current, he was required to first complete 240 hours as a pharmacy technician. Walgreen also required that he complete fifty hours of computer training to become familiar with company practices and policies. He said he was working at a
As a pharmacy technician, he was required to reach down to аnkle level to retrieve containers for medication and to reach across a waist-high counter to place the filled medications in a bin. He performed this duty over and over, standing in one place. On Friday, August 11, 2006, Goode clocked in to begin work at 8:22 a.m. Goode said that at around 11:00-11:30 a.m., his mid-back began tightening and stiffening up with “real sharp pain.” When he sat down for computer training that afternoon, he said the pain felt like a ruptured disc in his mid-back.
| ¿Goode treated his pain at home with ibuprofen, acetaminophen, and ice packs, but the pain did not subside. He first sought medical treatment for his back from Drs. Lamey and McGehee, both chiropractors, beginning on August 29 with the hope that he could resolve his back pain manually. Thereafter, Goode took a trip he planned prior to being employed by Walgreen to the Ukraine for about two weeks, returning to work in mid-September at the Russellville pharmacy. He said he just used ice packs and over-the-counter pain relievers. He did not file a workers’ compensation claim until November 22, 2006. He said this was prompted when a manager took issue with his use of a chair in the pharmacy.
Goode first saw Dr. Ghormley, an orthopedist, in February 2007 for his mid-back complaints. A March 27, 2007 MRI of his thoracic spine revealed a small, focal central disc protrusion and small annular tear at T6-7, along with mild degenerative changes at T9-10 and T10-11. Dr. Ghormley referred him to orthopedic surgeon Dr. Saer, who he saw on August 28, 2007. Dr. Saer noted the quick onset of symptoms after his being hired; he read the MRI as showing “some desiccation and early degeneration at T6-T7 with a small central herniation.” Dr. Saer recommended non-operative care, like physical therapy аnd injections to treat his pain. At some point, Goode was moved to a less strenuous Walgreen pharmacy job in Salem, Arkansas.
Goode traveled to Florida in September 2007 to the Laser Spine Institute, seeking a consultation about possible laser treatment for his thoracic spine problems. After a consultation, he changed his mind about proceeding with this doctor.
Isln November 2007, Goode sought the care of a neurosurgeon in California, Dr. Chiu, who operated on his thoracic and lumbar spine on November 15, 2007. Dr. Chiu reported evidence of herniations at T5-6, T6-7, L4-5, and .L5-S1, which he believed were “post traumatic” and “a result of the work related injury dated 08/11/06.” Because conservative treatment failed, Dr. Chiu recommended “provocative thoracolumbar discograms and microdecompressive thoracolumbar discec-tomy” to treat the thoracic herniations. Dr. Chiu opined that this was a much more cost effective, less invasive treatment that would require far less recovery time than traditional spinal discectomies.
This was the first time Goode missed work due to his back problems. He received facet-joint injections to T7-8 and T8-9 on December 17, 2007. In February 2008, Goode received a nerve-blocking procedure, and in March 2008, Dr. Chiu operated again to treat recurrent T6-7 herniation by repeat discography and dis-cectomy. Dr. Chiu opined with сertainty that Goode was injured at work on August 11, 2006, and that this precipitated his thoracic disc symptoms.
For each of these procedures, Goode said he was off work for about three weeks, and thereafter he would work up to
IfiGoode believed he received positive results after Dr. Chiu’s treatments, and Dr. Chiu released him to work July 21, 2008. Even so, Goode did not return to work for the pharmacy and instead continued with physical therapy. He was given a five-percent permanent partial impairment rating for his mid-back procedures by Dr. Chiu in November 2008 when Goode was deemed at maximum medical improvement. Goode said that his mid-back hurts if he engages in any activity for more than approximately forty minutes, if the activity involves standing or bending.
The two chiropractors and Dr. Chiu directly related his thoracic symptoms to his work on August 11, 2006. In July 2009, Dr. Saer was asked to review the entirety of Goode’s medical records to date. Dr. Saer opined that Goode’s problems related to preexisting degenerative disc disease and the natural progression of it. Also in July 2009, Dr. Thоmas, a neurosurgeon, was asked to review Goode’s medical records, and he agreed with Dr. Saer that the existence of degenerative change at multiple levels in his thoracic spine was the cause of his pain, not the work.
Dr. Lawrence, Goode’s long-time family physician, offered a letter in which he stated his belief that Goode did not have any ongoing back pain until this work event. Goode’s mother testified, corroborating her son’s testimony.
On this evidence, the ALJ rendered his opinion, in which he rejected Goode’s claim of a specific-incident thoracic injury but believed that Goode carried his burden of demonstrating a gradual-onset thoracic injury based upon his credible description of his work duties. The ALJ credited the opinions of those medical providers — Drs. McGehee 17(chiropractor) and Chiu (surgeon) — who believed that his herniations and annular tear were directly related to his work and the major cause for the need for treatment. He rejected the physicians’ opinions — Drs. Saer and Thomas — that contended Goode suffered solely fromO preexisting degenerative change in his spine and did not need surgical intervention. The ALJ also credited Goode’s mother and his family physician in their belief that Goode never had prior thoracic back problems. The ALJ found the lumbar complaints unrelated to his work because he first noticed low-back pain in mid-September 2006 and first reported it to his chiropractor in mid-October 2006, removed in time from August 2006 and after his long trip to the Ukraine.
The ALJ found that Goode was entitled to reasonable and necessary treatment of his thoracic injury, to include the surgeries performed by Dr. Chiu. Walgreen relied on the opinions of Drs. Ghormley, Thomas, and Sаer who opined that only conservative care would be warranted to treat his preexisting degenerative problems. The ALJ found Dr. Chiu’s opinion carried greater weight and that Goode was entitled to the provocative thoracic diseograms and microdecompressive thoracic discecto-mies. Goode’s stated рost-surgical improvement was noted as a factor in this decision.
Goode sought TTD from November 14, 2007 (when Dr. Chiu first operated) to November 7, 2008 (when Dr. Chiu finally gave him a rating and declared him at maximum medical improvement). Walgreen contested any TTD, but if it was
The ALJ awarded Goode a five-percent permanent-partial impairment rating based upon his own assessment of two-thoracic-disc-level surgical treatment as applied to the AMA Guides. He found that the major cause of the impairment was his compensable injury. Attorney fees were also awarded. Walgreen was determined to be entitled to a set off for any short-term benefits or group health-insurance bеnefits provided. By a 2-1 decision, the full Commission adopted the ALJ’s decision and this appeal followed.
First, Walgreen takes issue with the finding that Goode proved a compensa-ble gradual-onset thoracic injury.
Walgreen next attacks the award of medical benefits, specifically the surgical procedures performed by Dr. Chiu, as not reasonable or necessary for the thoracic injury. What constitutes reasonable and necessary medical treatment is a question of fact for the Commission to resolve. Ark.Code Ann. § 11-9-508 (Repl. 2002); Foster v. Kаnn Enters.,
Walgreen also argues that no TTD was warranted, and even if warranted after the surgical procedures, it would be limited to only those weeks between his first surgical procedure in November 2007 and July 21, 2008, when he did not earn income from his family businesses. We disagree.
To be entitled to TTD, a claimant must prove that he remains within his
Lastly, Walgreen argues that the ALJ’s decision to award Goode a five-percent permanent-partial disability rating is not supported by substantial evidence. It argues specifically that (1) the rating stems from Goode’s preexisting degenerative disc disease and the “risky, unreasonablе, unnecessary, and questionable surgical procedures on his thoracic spine,” and (2) Goode cannot satisfy the “major cause” requirement. We disagree.
The existence and extent of physical impairment must be supported by objective and measurable physical or mental findings. Ark.Code Ann. § 11 — 9—704(c)(1)(B) (Repl.2002). Permanent benefits shall be awarded only upon a determination that the compensable |ninjury was the “major cause” of the disability or impairment. ArkCode Ann. § ll-9-102(4)(F)(ii)(a) (Repl.2002). “Major cause” means more than fifty percent of the cause, which the claimant must establish by a preponderance of the evidence. Ark.Code Ann. § ll-9-102(14)(A) (Repl.2002); see also Yellow Transp., Inc. v. Bennett,
Hеre, the ALJ relied on Dr. Chiu’s November 7, 2008 report for the objective findings to support a rating. Therein, Dr. Chiu noted the surgical interventions on his thoracic spine. The ALJ referenced the AMA Guides himself, assigning a five-percent rating due to those two surgical treatments in the thoracic spine. The ALJ attributed the major cause of the rating to the compensаble thoracic injury. Undoubtedly, there is substantial evidence to support objective findings correlating to a five-percent permanent-impairment rating for Goode’s thoracic spine. Causation is a question of fact, and the evidence supported thoracic herniations that required decompression. We affirm the ALJ on this finding.
After viewing the evidence and all inferences in the light most favorable to the Commission, which affirmed and adopted the ALJ’s findings, we hold that the decision is supported by substantial evidence.
Affirmed.
Notes
. The insurance carriers, Zurich American Insurance Company and Sedgwick Claims Management Services, Inc., are also appellants of record. For clarity, we will refer to only the insured employer, Walgreen, as the appellant in this opinion.
. Goode was found to have failed to notify his employer of the work injury until November 22, 2006, so the employer’s liability for medical treatment did not begin until that date. Goode does not appeal that finding.
. Goode did not prevail on his alternative basis to award benefits — that being a specific-incident injury to his thoracic spine. For this reason, Walgreen’s arguments on that subject are immaterial.