I respectfully dissent from the majority's Opinion and Award in this case reversing the Deputy Commissioner with regard to the payment of medical treatment, including physical therapy and any non-authorized cortisone injections recommended by Dr. Miller. There is insufficient evidence of record to support Finding of Fact Number 9 and Conclusions of Law Numbers 1 and 2.
Plaintiff has failed to carry his burden of proof with respect to medical treatment recommended by Dr. Miller, in that, the treatment would not and, in fact, did not tend to effect a cure, give relief, or lessen plaintiff's period of disability. According to plaintiff's treating physician, Dr. Nelson, the treatment recommend by Dr. Miller would not benefit plaintiff. Furthermore, since he was plaintiff's treating physician and treated plaintiff for a greater length of time, Dr. Nelson's opinions are afforded more weight than Dr. Miller's. After finding no objective reasons for plaintiff's continued complaints, Dr. Nelson released plaintiff to light duty work on 20 December 1993 at which time plaintiff returned to work with defendant-employer until 29 December 1996. Although plaintiff disagreed with Dr. Nelson and stated that he would seek a second opinion regarding his complaints, he did not see Dr. Miller until at least 3 months later on 17 March 1994 at which time Dr. Miller recommended physical therapy and cortisone injections. Plaintiff was in more pain after the cortisone injection, according to his own testimony, and was unable to perform the attempted physical therapy regimen on or about 5 April 1994 and 6 April 1994 prescribed by Dr. Miller. Furthermore, the majority fails to acknowledge that even Dr. Miller admitted that the prescribed treatment had failed to benefit plaintiff. In addition, plaintiff demonstrated his wage earning capacity by again returning to work with another employer, a plastics company, as a forklift operator in April 1994 and continued working without the prescribed treatment through at least 22 November 1994 when Dr. Miller noted that plaintiff would continue his regular job and return on an as needed basis.
Although defendants did ultimately approve the injection performed in early October 1994 and it is therefore not an issue, no further injections are necessary to effect a cure, provide relief or tend to lessen the period of disability. In addition, as noted above, the plaintiff failed to prove that the physical therapy recommended by Dr. Miller was necessary to effect a cure, provide relief or tend to lessen the period of disability. Therefore, I respectfully dissent from the majority's decision.
S/ _______________ DIANNE C. SELLERS COMMISSIONER