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COX v. KLIPSCH & ASSOCIATES11/15/2000
their opinions appear to be based on their interpretation of diagnostic studies as failing to show clear, operable abnormalities. When Dr. Abraham examined appellant on October 18, 1993, he confirmed that she had a bulging disc at L4-5. He counseled her and gave her literature on a proposed discogram and percutaneous diskectomy. On December 8, 1993, he wrote that "Ms. Cox may indeed benefit from a percutaneous diskectomy in that she has a bulging disc at the L4-5 region." Dr. Abraham performed the diskectomy on December 15, 1993.
Dr. Moore did not dispute Dr. Abraham's preoperative and postoperative diagnoses of a "right L4-5 HNP (contained)." Furthermore, Dr. Moore's letter to appellee's attorney in 1998 stated that " ercutaneous diskectomy is recognized as an effective treatment for contained discs of the lumbar spine" and has "an approximate 79% success rate."
As stated above, the Commission found that Dr. Abraham's opinion was entitled to less weight than those of Dr. Knight and Dr. Moore. If all three doctors had been stating their opinions as to whether or not claimant was a surgical candidate, I would not be writing this dissent. The Commission clearly has the right to determine the weight to give differing medical opinions with regard to the same set of facts. I do not view the medical testimony as inapposite, but simply as different opinions rendered at different times. Appellant correctly notes that the issue before the Commission was not whether she was a candidate for surgery at a future date, an issue addressed by Doctors Moore and Knight, but whether the surgery later rendered by Dr. Abraham was reasonable and necessary, which I view as a different decision. In light of the medical evidence, including the advantage of Dr. Abraham's post-
operative diagnosis, I do not think that reasonable minds could conclude that the surgery was not reasonable and necessary.
Postsurgical improvement is a proper consideration in determining whether surgery was reasonable and necessary. Winslow v. D & B Mechanical Contractors, 69 Ark. App. 285, 13 S.W.3d 180 (2000). In Winslow, which the majority cites, the claimant stated that he did not benefit from a surgery, and even the surgeon who performed the procedure believed that it would not be effective; this court affirmed the Commission's finding that the surgery was not reasonably necessary for treatment of the compensable injury . Here, the situation is quite different. Appellant's surgeon suggested the surgery as an effective means of relieving her symptoms, and a doctor who had not thought her to be a surgical candidate admitted that not only was the surgery appropriate for the diagnosis rendered by her surgeon but that it was known to be effective in seventy-nine percent of the cases.
Arkansas Code Annotated ยง 11-9-508 (Repl. 1996) requires the employer to promptly provide for an injured employee such medical and surgical services as may be reasonably necessary in connection with the injury received. In my view, a person is entitled to have a fair chance for an improved life after an injury suffered in the work place even though the result may be short of recovery that allows a return to work. I revile the majority's view that surgery giving the patient the ability to again cook in her kitchen is insignificant. The fact that postoperative improvement was slight should not trump a finding that the percutaneous diskectomy was reasonably necessary for her disc problem. For the very same reasons, appellant's subsequent claim of permanent and total disability does not conflict with her testimony regarding some improvement.
I would find that there is no substantial basis in the medical records or th
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