VIRGINIA by tyndale


									VIRGINIA:                                                                      11/28/2001

                           Affirmed by the Court of Appeals at
                     Record No. 3472-01-2 (May 7, 2002)(unpublished)

JOSEPH WAYNE SUGGS, Claimant                                     Opinion by DIAMOND
v.            VWC File No. 174-62-27


Andrew J. Reinhardt, Esquire
1809 Staples Mill Road, Suite 300
Richmond, Virginia 23230
for the Claimant. 1

Joseph Wayne Suggs
9412 Deepbottom Road
Richmond, Virginia 23231

S. Vernon Priddy, III, Esquire
Post Office Box 1998
Richmond, Virginia 23218-1998
for the Defendants.

      REVIEW before Commissioner Dudley, Commissioner Tarr, and Commissioner
Diamond on March 21, 2001, at Richmond, Virginia.

       This case is before the Commission at the request of the claimant for Review of a

decision of the deputy commissioner that denied the claimant's change in condition claim. The

issues are whether the claimant is temporarily totally disabled as of ninety days prior to his

       At oral argument in this matter, the claimant was represented by attorney Andrew J.
Reinhardt, but proceeds pro se post-oral argument. Mr. Reinhardt's July 17, 2001 motion to
withdraw as counsel is granted.
                                                                         VWC File No. 174-62-27

application in June 1997, as well as the reasonableness, necessity, and causal relationship of

treatment by Dr. Michael J. Decker. The employer does not dispute Dr. Decker's status as

authorized treating physician. We REVERSE.

       The claimant, age 39 at the time of his 1995 injury, worked for fifteen years as a carpet

installer. Prior to starting his own business, the claimant was in the Marines, including service in

Viet Nam, from which he received an honorable discharge. He is married with two children.

       On January 5, 1995, he was stopped at a red light when he was rear-ended by another

vehicle. According to the claimant, he was in "perfect health" before this accident. He was

assessed with a strain/sprain of the cervical/thoraco-lumbar spine, and prescribed various

conservative therapies. On February 15, 1995, he saw orthopedist Robert S. Adelaar, M.D., who

continued to prescribe conservative therapies, and released him to light duty on August 16, 1995.

The claimant received temporary total disability benefits pursuant to an award through his light

duty release on that date. His change in condition application was filed on June 19, 1997.

       Following his release to light duty, the claimant attempted to continue his carpet

installing business by hiring others to do the physical labor, but he gave up his business and

sought employment with other carpet companies. He obtained a job, but was unable to continue

working, and he has not worked since December 1995.

       The claimant sought treatment at the Veterans Administration Hospital, where physicians

expressed concern about his requests for narcotic medication. In July 1996, the claimant was

involved in another motor vehicle accident in which he was again rear-ended, and the claimant

sought medical treatment from Dr. Kennedy S. Daniels.

       The claimant began treating with orthopedic surgeon Dr. Steven M. Fiore, on July 28,

1997, on referral from Dr. John P. Kowalski. Dr. Fiore testified by deposition on March 24,

                                                                         VWC File No. 174-62-27

2000. In Dr. Fiore's opinion, the claimant has been totally disabled from work since he first saw

him, and this is causally related to the 1995 accident. Dr. Fiore performed a discogram, which

he stated is the "most objective reporting of pain that you can get," because the patient cannot see

when the dye is going into a particular disc. In Dr. Fiore's opinion, the discogram reveals things

that cannot be seen in a CT scan or an MRI. He observed a grade three tear at L3 -4, and

discogenic pain at L4-5 and L5-S1. Another objective finding was "paraspinal spasm," where

muscles are contracted and tight. Dr. Fiore explained his reasoning for finding the claimant

totally disabled, "when you get pain for that long, mentally I think it is hard to concentrate and

do even desk work . . . . There is no job that will accommodate the amount of rest he is going to

need for his back, like laying down, completely getting off his back for segments of the day . . ."

Dr. Fiore concluded that the claimant was not a candidate for surgery, because he had pain

throughout his back. He therefore referred him to Dr. Decker for pain management.

       Between January 27 and February 3, 1998, the claimant was admitted to the Charter

Westbrook Behavioral Health System to attempt to withdraw from an addiction to narcotic pain

medication. In April 1998, he began treating with Dr. Decker.

       Dr. Decker testified by deposition on April 13, 1999. He is an associate professor of

Physical Medicine and Rehabilitation at Medical College of Virginia. He first saw the claimant

on April 28, 1998. Dr. Decker placed him in a pain clinic, where he received physical therapy,

swimming pool therapy, yoga, biofeedback, psychotherapy, and medicine management. Dr.

Decker directed the claimant to begin using crutches, in order to alter his gait which was

aggravating his back pain. Prior to that, he used a cane.

       Dr. Decker diagnosed the claimant with chronic cervical and lumbar radiculopathy;

substance abuse; and depression. The depression is secondary to the chronic pain and the loss of

                                                                         VWC File No. 174-62-27

employability. The claimant had been buying drugs on the street, and Dr. Decker was not sure if

this was a substance abuse problem, "or a problem of undermedication because he's fairly

resistant to the opiates, and the physicians caring for him were simply not giving him enough

medicine to alleviate his pain."

       In Dr. Decker's opinion, the claimant has been totally unable to work since he saw him,

and that this is causally related to the 1995 accident, as well as aggravated by the 1996 accident.

Dr. Decker defended this opinion against the contrary views of other physicians by stating that

he is an expert in issues of pain management, and this is not within the expertise of an orthopedic

surgeon. Dr. Decker also noted that he was able to observe the claimant nine hours a day in his

pain clinic, and he concluded that although he expressed pain "a little bit more than most patients

would," he was expressing pain in areas where there were objective findings.

       Dr. Sidney H. Schnoll, a pharmacologist, testified at the hearing on behalf of the

claimant. Dr. Schnoll is Chairman of the Division of Addiction Medicine at Medical College of

Virginia. He has expertise in drug addiction and chronic pain. Dr. Schnoll saw the claimant on

two occasions, and reviewed all of his medical records.         He diagnosed the claimant with

myofascial pain syndrome; somatoform disorder; and pseudoaddiction. Dr. Schnoll explained

that myofascial pain syndrome usually begins with injury and acute muscle spasm that does not

satisfactorily release unless adequately treated. Over time, if not aggressively treated, the pain

from the muscle spasm can spread to other muscle groups as the person protects one muscle due

to the pain. This is chronic pain syndrome, which, according to Dr. Schnoll, is the claimant's

primary condition.

       Somatoform disorder, as distinguished from malingering, develops when the underlying

personality reacts to an injury by exaggerating symptoms, by emphasizing the need for an

                                                                          VWC File No. 174-62-27

immediate surgical or other quick solution. Pseudoaddiction is essentially a description of a

misdiagnosis. People who suffer from psuedoaddiction are generally not receiving adequate

treatment for pain, and therefore they are seen as "drug-seeking." In Dr. Schnoll's view, the

claimant has not been appropriately medicated, although his treatment by Dr. Decker is an

improvement. Dr. Schnoll stated that orthopedic surgeons such as Dr. Adelaar, do not have

expertise in the area of addiction. Dr. Schnoll would alter the pharmacological regimen the

claimant is currently receiving from Dr. Decker, which includes Oxycotin, Oxycodone

(Percocet), and Morphine. Since they all do the same thing, Dr. Schnoll would consolidate into

an increased dose of sustained release Oxycotin, to reduce the need for Percocet and Morphine.

In reading the medical record, Dr. Schnoll concluded that the physicians who dismissed the

claimant as a drug addict "are not really up to date on modern pain therapy."

       Dr. Schnoll opined that until the claimant is given adequate and appropriate pain

medication, he will be unable to work. Dr. Schnoll also stated that the claimant's chronic pain

syndrome and somatoform disorder are causally related to the work accident. He stated that even

if the claimant were a true drug addict, instead of a pseudoaddict, this condition would also be

causally related to the accident and disabling.

       On cross-examination, Dr. Schnoll explained his methodology for distinguishing between

true subjective pain and malingering. He stated that in his opinion the claimant's pain is real.

       Dr. Robert Adelaar, orthopedic surgeon, treated the claimant in 1995, and released him to

light duty in August 1995. Dr. Adelaar next saw the claimant in August 1999, and wrote:

               This patient is still disabled by the pain he has. Unfortunatley, he
               is now on significant quantities of pain medicine . . . .

               At this point in time, I do not think he is an operative candidate
               and I will need to reevaluate his studies but it doesn’t seem like his
               condition has changed significantly since we saw him 4 years ago.

    VWC File No. 174-62-27

                                                                        VWC File No. 174-62-27

       Dr. Adelaar later wrote, in a letter dated September 9, 1999, to defense counsel:

               He is in a pain clinic and on heavy doses of narcotic analgesics,
               and yet on my examination, I did not see any new objective
               findings which would indicate that there had been progression of
               his disorder or progression of his neurologic findings. My current
               diagnosis is that he has a chronic lumbar strain without neurologic
               involvement and a bulging disc. . . .

               In my opinion, Mr. Suggs' ability to work now is similar to what it
               was when I released him to go to light duty on 8/16/95. The only
               problem we have now is that he is on analgesic medicine that
               would have to be adjusted, treated or he would need to be placed
               on some type of a patch program so that he could concentrate and
               perform work and not be a hazard to himself and others
               involved. . . .

       At the request of the employer, Dr. Walter S. Davis, physiatrist, performed an

independent medical evaluation. He stated that he does not believe the claimant is an appropriate

patient for chronic narcotic treatment. Dr. Davis also believed that the claimant can perform full

time sedentary work. He conceded that he is not qualified to read discograms. He added, "He

has certainly had an adequate trial of medication with narcotic to see if his function and overall

outcome improved. It does not appear to be the case at this time."

       Orthopedic surgeon, Howard G. Stern, M.D. also performed an independent medical

examination on October 28, 1998. He stated that, "Based upon all the information available to

me, no treatment whatsoever beyond twelve weeks post injury was medically necessary for

injuries sustained in the motor vehicle accident of January 5, 1995."        Dr. Stern observed

"symptom magnification." Following a records review, Dr. Douglas A. Wayne stated that he

agreed with Dr. Stern, and suggested that the claimant be withdrawn from narcotics.

       The primary issue is whether the claimant has shown that his condition has deteriorated

since 1997. We find that it has. Dr. Fiore, an orthopedist who first saw the claimant in July

1997, testified that the claimant has been totally disabled since that time. Dr. Decker, a pain

                                                                         VWC File No. 174-62-27

management specialist who began treating the claimant in April 1998, stated that the claimant

has been totally disabled. Dr. Decker made the point that he was able to observe the claimant

nine hours a day in his pain clinic, and it was clear to him that the claimant could not work. In

addition to extensive personal observation of the claimant, both Drs. Fiore and Decker point to

objective evidence of discogenic pain based on the discogram. Another objective indicator of

the claimant's worsening condition is the fact that Dr. Decker directed him to use crutches,

whereas previously he had used a cane. Dr. Schnoll supports the opinions of Drs. Fiore and

Decker, arguing that an orthopedic surgeon such as Dr. Adelaar is not qualified to direct or

assess treatment of chronic pain syndrome. Dr. Schnoll explained the claimant's "drug-seeking"

behavior as a result of his undermedication by his original treating physicians.

       We find the opinions of these physicians more persuasive than those of Drs. Adelaar,

Davis, Stern and Wayne, for several reasons. First, Drs. Fiore and Decker are more familiar with

the patient than are the other doctors. Second, we note that the claimant was able to successfully

run his own business and engage in heavy physical labor, and to maintain a stable family life,

until the age of 39, when the motor vehicle accident occurred. The claimant was not addicted to

narcotics prior to the accident. As Dr. Schnoll pointed out, even if the claimant were considered

a narcotics addict rather than a "pseudoaddict" as Dr. Schnoll believes, this condition impairs his

ability to work and is related to his accident. Dr. Adelaar concedes that the claimant is in pain,

and his condition is complicated by his narcotic regime.

       We do not agree with the deputy commissioner's reasoning that the fact that the claimant

believes that he has always been totally disabled since the accident refutes his argument for a

change in condition, which is supported by the medical evidence.

                                                                          VWC File No. 174-62-27

       The employer argues that the treatment by Dr. Decker is not reasonable or necessary,

because it involves extensive use of narcotics. We disagree. Both Dr. Decker and Dr. Schnoll

believe that appropriate use of narcotics has been necessary. Dr. Davis stated that a trial of

narcotics was appropriate but since his condition did not improve it should be discontinued.

Clearly, several of the doctors who previously treated the claimant were alarmed by the fact that

the claimant was seeking narcotic pain medication, but they were not pain management

specialists. We are reluctant to substitute our opinion for the opinion of the treating physicians.

       We therefore find that the claimant has established temporary total disability

commencing ninety days prior to the filing of his claim, pursuant to Rule 1.2(D). We also find

that the employer is responsible for the treatment rendered by Dr. Decker, who remains his

authorized treating physician.

       The Opinion below is therefore REVERSED, and the following award shall enter.


       An award is hereby entered in favor of Joseph W. Suggs, claimant, against Suggs Carpet

Installation and Hartford Casualty Insurance Company, insurer, for payment of compensation as

follows: $466.00 per week during temporary total disability based upon a pre-injury average

weekly wage of $700.00 commencing March 22, 1997 and continuing until modified. All

accrued benefits to be paid in one lump sum directly to the claimant.

       Medical benefits shall continue pursuant to § 65.2-603 for as long as necessary, including

treatment provided by Dr. Decker.

       From the accrued benefits awarded, the sum of $12,000.00 shall be withheld and paid

directly to Andrew J. Reinhardt, Esquire, for legal services rendered the claimant in this case.

       This matter is hereby removed from the Review docket.

                                                                         VWC File No. 174-62-27

TARR, COMMISSIONER, Concurring & Dissenting:

       I respectfully dissent from the majority’s finding that Dr. Decker’s narcotics therapy

treatment has been proper. If Dr. Decker’s treatment to date were appropriate, I would still order

a change in treating physicians.

       The majority of the medical providers do not agree that Dr. Decker’s chronic narcotic

treatment is appropriate. I am not persuaded by Dr. Schnoll’s defense of Dr. Decker’s treatment.

       Moreover, even if the past treatment was authorized and reasonable, it is time for a new

treating physician. The Commission will order a change in treating physicians when the evidence

establishes that inadequate treatment has been rendered, a specialist is required and not provided,

the claimant’s condition has not improved without adequate explanation, conventional modalities

of treatment are not being used, there is no treatment plan for long-term disability cases, or the

physician has failed to cooperate with discovery proceedings. Powers v. J. B. Construction Co.,

68 OIC 208, 211 (1989).

       At least three of these elements were established: inadequate treatment, lack of

improvement, and lack of referral to a specialist to treat the claimant’s psychological problems.

When I consider the narcotics prescribed by Dr. Decker, (Oxycotin, Percocet and Morphine), a

strong argument can be made that the fourth element, nonconventional modalities, also was


       As for new treatment, I would follow Dr. Davis’ recommendation for comprehensive

pain management at a Pain Management Center focusing on the claimant’s psychological and

sleep problems. I would refer the parties to mediation to see if they can agree on an appropriate

pain management center for treatment, consistent with Dr. Davis’ recommendations.


                                                                        VWC File No. 174-62-27


        This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty

days of receipt.

cc:     Suggs Carpet Installation
        9412 Deepbottom Road
        Richmond, Virginia 23231

        Hartford Casualty Insurance Company
        4480 Cox Road
        Second Floor
        Glen Allen, Virginia 23060


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