dissenting. By a three-to-three vote the decision of the Workers’ Compensation Commission is affirmed in this case. In order to discuss the merits of the prevailing opinion it is necessary to know what the Commission decided. To get to that point, we can start with the admitted compensable injury sustained by the appellant on October 31, 1992.
On that day the appellant, a machinist, had been lifting steel parts weighing from 150 to 200 pounds and putting them into a lathe. He testified that “finally my back just gave out, and I ended up with pains going from my shoulders into my neck and down my back and into my legs.” He went to the emergency room at St. Joseph’s Hospital in Hot Springs where they made X-rays and referred him to Dr. Reinhart, the company doctor.
Dr. Reinhart’s office note of November 2, 1992, states, “Mr. Gansky presents today with complaints of back pain. He injured his back on Saturday. . . . Lower back syndrome with possible disc involvement.” Dr. Reinhart saw the appellant again on November 12, and November 19, 1992. The doctor’s office note on this last date states, “Patient would like to try conservative measures with physical therapy and continuation of medications and rest.”
Appellant was then referred to Cleveland Smith for physical therapy, and Dr. Reinhart’s office note of January 11, 1993, states that appellant returned for a follow-up visit and said he was “doing much better.” The doctor’s last notation states, “Start work hardening program and start work at light duty and follow-up with me in one month.”
The Commission’s opinion states that the appellant “apparently did return to work on January 12 or 13, 1993,” but the physical therapist’s notes indicate that the appellant began to experience pain in his upper back and neck on January 13, 1993; that he complained of “tingling sensations” in both arms; and that he again contacted Dr. Reinhart who subsequently referred him to a neurosurgeon, Dr. Allen Godo.
On January 27, 1993, Dr. Godo reported that his impression was “cervical and lumbar herniated disc with nerve root compression,” but a myelogram showed only “mild focal extradural defects” and a CT scan found “no evidence of disc herniation.” By a “To whom it may concern” letter, dated 1/29/93, Dr. Godo wrote that he had advised the appellant “to remain off work until I can re-evaluate him.” And on February 22, 1993, Dr. Gocio referred the appellant to the Levi Work Capacity Center for a Functional Capacity Assessment program and wrote in his notes that he would consider returning appellant to work after the evaluation. Appellant attempted to schedule the functional capacity assessment with Levi Hospital but he was notified by that hospital that the workers’ compensation carrier refused to pay for it and, under those conditions, the hospital would not schedule it.
At the hearing before the administrative law judge, the appellant testified that he still was having headaches and lower back pain but that it was not as severe because he was not doing any lifting. He also stated that he had attempted to return to work several times prior to February 22, 1993, but the pain was so bad he could not continue. He testified that he takes prescription medications and Advil as needed for pain.
In a letter dated October 21, 1993, Dr. Gocio wrote in part:
Mr. Rick Gansky was last seen by me on 02-22-93, and at this time the patient was improving significantly from a suspected cervical strain syndrome. . . . The patient was referred to the Levi Work Capacity Center for a functional capacity assessment and return to work if feasible after the functional assessment. This is the last contact that I had with the patient. I must assume he has resolved his symptomatology or sought care from another physician.
The administrative law judge held that appellant was entitled to the diagnostic studies recommended by Dr. Gocio, and any further necessary treatment, at appellee’s expense. He held in abeyance all other issues.
The Commission reversed. It held that appellant suffers from recurring episodes of back pain which is associated with a preexisting degenerative condition that has been present at least since a February 14, 1990, injury which was settled by joint petition; that appellant’s complaints have all been the same since the 1990 injury; and that the medical evidence regarding the 1992 injury contains findings “that are very similar” to the findings after the 1990 injury. The Commission also held that a preponderance of the evidence established that “the October 31, 1992, injury only temporarily aggravated the claimant’s preexisting back condition” and that appellant was “essentially” symptom free by February 25, 1993. Since Dr. Gocio had found no permanent physical impairment, the Commission held that no further treatment was necessary for the 1992 injury.
I cannot agree with the Commission’s findings. In the first place, even if the Commission is correct that this was only a “temporary aggravation” of a preexisting condition, appellant was still entitled to be treated for that condition until released by his treating physician. Although Dr. Gocio had indicated that he did not think the appellant would have any permanent impairment, the reason he ordered the physical assessment was to determine whether appellant was actually ready to return to work. Obviously, if the employer refuses to allow the injured employee to have a determination of physical ability to return to work made by the doctor the employer provides to treat the employee, then the employee has not been released from his doctor’s care. I think that appellant was at least entitled to the functional capacity assessment and, following that, an examination by Dr. Gocio to determine whether appellant could return to work.
I am authorized to state that Judges Cooper and Robbins agree with this dissent.