dissenting. I agree with the majority that the claimant is entitled to receive temporary partial disability benefits through March 21, 2006. However, I would also reverse for an award of medical benefits, specifically, the surgery recommended by Dr. Kelly Danks. In denying Amaya’s entitlement to the surgery, the Arkansas Workers’ Compensation Commission (Commission) engaged in speculation, misapplied the results of Amaya’s functional capacity evaluation (FCE), and relied on medical evidence that is plainly contrary to the record.
Amaya suffered a compensable back injury on June 2, 2004. The first MRI revealed broad-based disc bulges flattening the anterior aspect of the thecal sacs at the L3-4, L4-5, and L5-S1 levels. Additionally, at the L4-5 and the L5-S1 levels, the bulges effaced the cauda, and minimally to moderately narrowed the left neuroforamina. The bulge at the L4-5 level contained a right, paracentral component, and caudal extrusion was suspected at that level.
Dr. Danks, the treating neurologist, first saw Amaya on July 19, 2005. Based on his physical exam and the MRI, Dr. Danks concluded that Amaya had “disc protrusion on the right at L4-5 and left paracentral at L5-S1.” He assessed Amaya with “herniated nucleus pulposis with lumbago” and “degenerative disease of the lumbar spine” noting that Amaya had back pain since his injury and had been unable to work. After physical therapy failed, Dr. Danks scheduled epidural steroid injections. After the steroid injections provided only temporary relief, Dr. Danks recommended a posterior lumbar interbody fusion at L4-5 and L5-S1.
At the employer’s request, Dr. Steven Cathey, another neurologist, performed an independent medical evaluation (IME) on December 8, 2006. Dr. Cathey concluded that Amaya’s current chronic low back pain was most likely secondary to degenerative lumbar disc disease rather than being caused by his compensable “musculoskeletal” injury. Without benefit of viewing the MRI, Dr. Cathey opined that Amaya was not a surgical candidate.
Nonetheless, Dr. Cathey opined that epidural steroid injections were “a reasonable treatment option” and further stated that, “I believe this should also be covered under his worker’s compensation carrier.” He also encouraged Amaya to follow-up with Dr. Danks if he remained symptomatic after receiving the injections. Finally, Dr. Cathey determined that Amaya had reached maximum medical improvement (MMI) and suggested a FCE. Dr. Cathey later reviewed the MRI but did not change his conclusions.
Dr. Danks ordered the FCE, which was performed on March 12, 2006. The evaluator concluded that Amaya put forth “unreliable results for effort” and displayed inappropriate pain responses. The evaluator concluded that Amaya could perform medium-duty work.
Dr. Danks never saw the FCE results even though he knew that the FCE had been performed. On May 3, 2006, he reiterated that he had recommended fusion surgery, which Amaya had initially refused, and stated that Amaya’s work limitations would be dictated by his FCE. He also stated that Amaya had reached MMI. (Amaya later consented to the surgery, which he had refused only because he had no one to provide post-surgical care in his home).
I would reverse the Commission’s determination that Amaya is not entitled to surgery, first, because it misapplied the FCE results to determine Amaya’s entitlement to surgery — a purpose not intended by the test, which is used to determine those jobs a person can safely perform. Second, the Commission misused the FCE results to speculate that Dr. Danks may have reversed his surgical recommendation based on the FCE results. It stated, “There is no indication whatsoever that Dr. Danks is still of the opinion that surgery is necessary, particularly when the FCE is considered and Amaya was giving unreliable effort and demonstrated inappropriate illness responses.”
Thus, in determining that Amaya was not entitled to surgery, the Commission clearly and improperly speculated by basing its decision on medical evidence that is not in the record. Conjecture and speculation, even if plausible, cannot take the place of proof. See Lohman v. SSI, Inc., 94 Ark. App. 424, 232 S.W.3d 487 (2006). The medical records that we have unequivocally indicate that Dr. Danks never changed his surgical recommendation, even after being informed that the FCE had been performed. To the contrary, he thereafter again recommended surgery and further stated that the FCE would determine Amaya’s work limitations. Dr. Danks’s determination that Amaya needed surgery was based on the objective MRI results, which were not altered by the subjective FCE results.
Secondly, while the Commission is entitled to weigh the evidence, it is not entitled to rely on a medical opinion that is contrary to the evidence in the record. Dr. Cathey stated on December 8, 2006, that Amaya had reached MMI; that he was not a surgical candidate because his problems were degenerative in nature; and that the employer should pay for Amaya’s steroid injections. Dr. Cathey’s opinion is unreliable, as an initial matter, because he inconsistently opined that Amaya reached MMI, yet also recommended further treatment at the employer’s expense. Moreover, Dr. Cathey disregards: 1) the fact that the MRI contains more than degenerative findings, including tri-level herniated discs flattening the anterior aspect of the thecal sacs at each level and bi-level caudal effacement; 2) the fact that Amaya has no history of prior back problems; and 3) the fact that he was able to perform his job with no limitations prior to suffering the com-pensable injury to his back.
On these facts, reasonable minds should not have concluded that Amaya’s back condition is due to his degenerative condition. Accordingly, I would reverse the Commission’s denial of additional temporary partial disability benefits, and would also reverse that part of the Commission’s order finding that Amaya is not entitled to the surgery recommended by Dr. Danks.