BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION WCC NO. F SHARON FERREN, EMPLOYEE SEARCY INDUSTRIAL LAUNDRY, EMPLOYER RESPONDENT NO.

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION WCC NO. F SHARON FERREN, EMPLOYEE CLAIMANT SEARCY INDUSTRIAL LAUNDRY, EMPLOYER RESPONDENT NO. 1 MID-CENTURY INSURANCE CO., CARRIER RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED JUNE 23, 2017 Hearing before Administrative Law Judge O. Milton Fine II on March 30, 2017 in Little Rock, Pulaski County, Arkansas. Claimant represented by Ms. Laura Beth York, Attorney at Law, Little Rock, Arkansas. Respondents No. 1 represented by Mr. Jason A. Lee, Attorney at Law, Little Rock, Arkansas. Respondent No. 2, represented by Ms. Christy King, Attorney at Law, Little Rock, Arkansas, excused from participation. STATEMENT OF THE CASE On March 30, 2017, the above-captioned claim was heard in Little Rock, Arkansas. A pre-hearing conference took place on January 3, A prehearing order entered that same day pursuant to the conference was admitted without objection as Commission Exhibit 1. At the hearing, the parties confirmed that the stipulations, issues, and respective contentions, as amended, were properly set forth in the order. Stipulations At the hearing, the parties discussed the stipulations set forth in Commission Exhibit 1. Following amendments, they are the following, which I accept:

2 Ferren - Claim No. F The Arkansas Workers Compensation Commission has jurisdiction over this claim. 2. The employer/employee/carrier relationship existed on January 13, 2000, when Claimant sustained a compensable injury to her cervical and lumbar spines. 3. Claimant s average weekly wage entitles her to compensation rates of $213.00/$ Claimant received an impairment rating of twelve and one-half percent (12½%) to the body as a whole, which has been paid. 5. The prior opinions in this claim are res judicata, and are binding on this proceeding under the Law of the Case Doctrine. 6. Claimant reached maximum medical improvement and the end of her healing period on December 22, If Claimant s surgery is found to have been reasonable and necessary, then she has re-entered a healing period. Issues At the hearing, the parties discussed the issues set forth in Commission Exhibit 1. The following were litigated: 1. Whether Claimant is entitled to additional medical treatment. 2. Whether Claimant is entitled to additional temporary total disability benefits. 3. Whether Claimant is entitled to additional permanent partial disability benefits.

3 Ferren - Claim No. F Whether Claimant is permanently and totally disabled or, in the alternative, entitled to wage loss disability benefits. 5. Whether Claimant is entitled to a controverted attorney s fee. All other issues have been reserved. Contentions The respective contentions of the parties, following amendments at the hearing, read as follows: Claimant: 1. Claimant contends that on January 10, 2000, she sustained compensable injuries to her cervical and lumbar spine. 2. This case has been the subject of previous litigation, and it has been determined that Claimant sustained compensable neck and back injuries. 3. Respondents No. 1 have been paying for medical treatment, including pain management, until Dr. Gregory Ricca recommended surgery in the form of a lumbar fusion. Now, all medical treatment, including the pain management that she had been receiving since 2000, has been denied by Respondents No. 1, despite the independent medical evaluation from Dr. Calhoun who opined that the major cause of continued need for treatment is the work injury of 2000 and that it would be inhumane to discontinue treatment after such a long time. Additionally, Dr. Thomas Hart stated that within a reasonable degree of medical certainty Claimant will need further decompression of her lumbosacral spine by a neurosurgeon.

4 Ferren - Claim No. F As Respondents No. 1 declined to continue to pay for treatment after Dr. Ricca s IME, Claimant had no choice but to continue treatment on her own. 5. Claimant went to Dr. Brad Thomas, who performed a right-sided L4-5 laminotomy and decompression with right-sided L4-5 microdiscectomy on June 2, 2016, and then an L4 and L5 complete laminectomy, removal of recurrent disk on the right at L4-5 on June 3, Claimant contends that she is entitled to medical treatment from Dr. Thomas and that Respondents No. 1 should have to continue paying for her pain management. 6. Claimant contends that she is entitled to additional temporary total disability benefits from December 19, 2014 to a date yet to be determined, along with additional permanent partial disability benefits for her cervical and lower back injuries. 7. On April 23, 2010, Dr. Citty opined that Claimant was permanently and totally disabled as a result of her workers compensation claim. 8. Claimant contends that she is permanently and totally disabled or, in the alternative, that she sustained significant wage loss. 9. Additionally, Claimant contends that her attorney is entitled to a controverted fee. 10. All other issues have been reserved. Respondents No. 1: 1. Respondents No. 1 contend that they have provided Claimant with pain management by Dr. Hart of Searcy for the past several years. As a result of persistent complaints with her lower back, Dr. Hart referred her to Dr. Ricca,

5 Ferren - Claim No. F a neurosurgeon in Searcy. Claimant presented to him with complaints of lower back pain, particularly on the right side, with radiation into both hips and numbness in her left toe. 2. Following a clinical evaluation, Dr. Ricca ordered a lumbar MRI. The MRI revealed subtle spondylolisthesis at L3 and L4 and marked stenosis with moderate neural compression at L3-4 and marked neural compression bilaterally at L4-5. As a result of his findings, Dr. Ricca recommended that Claimant undergo a decompression to relieve the nerve compression caused by this stenosis. Dr. Ricca s deposition was taken, and he testified that he could not state to within a reasonable degree of medical certainty that the stenosis giving rise to Claimant s symptoms was a result of the work-related injury. Instead, he testified that stenosis is a result of slow, progressive deterioration. 3. Dr. Ricca further testified that Claimant s complaints of pain are related to her stenosis and not as a result of the injury in Therefore, based on this medical testimony, Respondents No. 1 contend that Claimant s pain and the resulting pain therapy are not related to the work injury of 2000 but are a result of stenosis, which was not caused by the work injury. 4. Respondents No. 1 also contend that, as Dr. Ricca has opined that the recommended surgery is not related to her work injury and instead is a result of unrelated degeneration, Claimant is not entitled to temporary total disability benefits.

6 Ferren - Claim No. F In the event that the surgery by Dr. Thomas is found to be reasonable and necessary and arising out of the underlying work injury, the temporary total disability dates began from the point that she had surgery, which was June 2, 2016, and ended on September 18, 2016, when she was found to be at maximum medical improvement. Respondent No. 2: 1. Respondent No. 2 contends that if Claimant is found to be permanently and totally disabled, the Trust Fund stands ready to commence weekly benefits in compliance with Ark. Code Ann (Repl. 2012). Therefore, the Trust Fund has not controverted her entitlement to benefits. FINDINGS OF FACT AND CONCLUSIONS OF LAW After reviewing the record as a whole, including medical reports, documents, and other matters properly before the Commission, and having had an opportunity to hear the testimony of the claimant and to observe her demeanor, I hereby make the following findings of fact and conclusions of law in accordance with Ark. Code Ann (Repl. 2012): 1. The Arkansas Workers Compensation Commission has jurisdiction over this claim. 2. The stipulations set forth above are reasonable and are hereby accepted. 3. Claimant has proven by a preponderance of the evidence that all of the pain management treatment of her compensable cervical and lumbar spine injuries that is in evidence and that Respondents No. 1 did not cover was reasonable and necessary.

7 Ferren - Claim No. F Claimant has proven by a preponderance of the evidence that she is entitled to additional treatment of her compensable cervical and lumbar spine injuries in the form of pain management as recommended by Dr. Thomas Hart. 5. Claimant has proven by a preponderance of the evidence that her two lumbar spine surgeries by Dr. Brad Thomas were reasonable and necessary. 6. Claimant has proven by a preponderance of the evidence that she is entitled to additional temporary total disability benefits from June 2, 2016 to September 18, Claimant has proven by a preponderance of the evidence that she is entitled to an additional permanent impairment rating of two and one-half percent (2½%) to the body as a whole, and permanent partial disability benefits pursuant thereto. 8. Claimant has not proven by a preponderance of the evidence that she is permanently and totally disabled. 9. Claimant has proven by a preponderance of the evidence that she is entitled to wage loss disability of thirty percent (30%). 10. Claimant has proven by a preponderance of the evidence that she is entitled to a controverted attorney s fee on the medical and indemnity benefits awarded herein, pursuant to Ark. Code Ann (Repl. 1996). CASE IN CHIEF Summary of Evidence Claimant was the sole hearing witness. Dr. Gregory Ricca testified via deposition.

8 Ferren - Claim No. F In addition to the prehearing order discussed above, also admitted into evidence in this case were the following: Commission Exhibit 2, a letter from counsel for Respondent No. 2 to the Commission dated March 17, 2017, concerning the contents of the prehearing order, consisting of two pages; Claimant s Exhibit 1, a compilation of her medical records, consisting of eight abstract/index pages and 248 numbered pages thereafter; and Respondents No. 1 Exhibit 1, the transcript of the deposition of Dr. Ricca taken on May 8, 2015, consisting of 18 numbered pages. 1 Also, I have blue-backed to the record the respective post-hearing briefs of Claimant (filed April 13, 2017) and Respondents No. 1 (filed April 14, 2017), each consisting of three numbered pages. Finally, in order to lay out the procedural history of the case, the claim file has been incorporated herein by reference. Testimony Claimant, who is 68 years old and a high school graduate, testified that her initial jobs in the workforce were things that she was able to do out of her home, while she was still rearing her children. These jobs included babysitting and wedding planning. For the latter job, she created wedding cakes and did the flowers. After she stopped handling weddings, she continued to decorate cakes. In 1982, she went to work for Land O Frost; but she left after three years to be available for her high school-aged daughter. Later, she went to work for the Van Heusen Shirt Factory, where she hemmed shirts. Following three years in this job, she left for Respondent Searcy Industrial Laundry in She was employed there as a classifier. Claimant described her duties: 1 Per Commission policy, the deposition transcript, separate bound, will be retained in the Commission s file.

9 Ferren - Claim No. F I would examine the garments for tears, no buttons, stains. If it couldn t go back on the in the stockroom for the guys that wore the uniforms or ladies, whoever, if it couldn t go back to them, would seven it out on the computer. Take it completely out of the system. Or I would put it back into the system where they had returned it. Asked how she came to be hurt, she responded: I was I had did [sic] all of my garments, classifying them, and I would set aside the ones to be throwed away, take them to the computer and seven them out, take them out of the system. And then as you took them out, you would drop them in a big box, and then we would set them aside an taken them to the Goodwill. Well, these big boxes, when I lifted that first big box, pain just shot through me. I had no idea what had happened to me. I was just hurt. As a result, she sustained injuries to her neck and back. The compensability of those injuries was litigated in the previous proceeding. Claimant initially treated with Dr. Jim Citty but continued to work. However, she began having chest pains. Thereafter, Citty took her off work and referred her to Dr. Ron Williams. He did not recommend surgery, but released her in 2003 with a twelve and one-half percent (12½%) impairment rating, which was paid. Williams also referred her to Dr. Thomas Hart for pain management. She treated with Citty and Hart for a number of years. Hart referred her for a neurosurgical consultation, and Respondents No. 1 sent her for an IME with Dr. Michael Calhoun. After that, Claimant continued to treat with Drs. Citty and Hart. Then, Hart set her up with an appointment with Dr. Gregory Ricca. However, after Ricca recommended surgery, Respondents No. 1 controverted all further treatment. The treatment that she has undergone since then has been paid for by Medicaid and/or out of her own pocket. Claimant next saw Dr. Brad Thomas. On June 2, 2016, he operated on her lower back. A second surgery took place the next day. Questioned about her lower back condition before the operations, she stated:

10 Ferren - Claim No. F Before the surgery, I was in a wheelchair, and I was in constant pain. There was no let up. It was just constant. I was trying to get a shot at the emergency room. Anything just to give me some relief... I wasn t in a wheelchair til like up to about two weeks before the surgery, and that s when it just started and just didn t let up... [t]here was no relief. I couldn t stand on my feet. I couldn t stand to stand on my feet because I was hurting so bad. The pain was just constant, and if you stood, it just was even worse. So they got me a wheelchair, and I just tried to get something done... [a]ny doctor that would do something. Just relieve my pain. According to Claimant, she did wonderful after the surgery and obtained relief. However, at times since then, she has again experienced lower back pain that came close to requiring that she again use a wheelchair. In 2013, Claimant fell. This resulted in her breaking her arm and tearing her rotator cuff. Her testimony was that the fall was due to her left leg going out. She related that before this occurred, she began having trouble with her left would not pick up. This caused her to stumble at times, and led her husband to build railings at the front door of her house. Claimant denied having any problems with her left lower extremity prior to her work-related injury. Describing her work before she got hurt at Searcy Industrial Laundry, Claimant stated that she was able to work every day, and did not miss work. About two years after her injury there, she was terminated. Claimant filed for Social Security disability benefits, and was accepted. Asked whether she thought there was any type of work she could now perform, Claimant responded: No, because I wouldn t hire anybody in my condition. She takes Tramadol and Lyrica, along with a Duragesic patch. While the medications help her pain, they leave her feeling a little bit drugged. Claimant has pain that travels down her arms. She drops things a lot because she has trouble with her grasp. If she looks a certain way,

11 Ferren - Claim No. F it causes her neck to become stiff. She denied having these problems before her 2000 injury. Because of these conditions, she can no longer bake and decorate cakes. Her husband now has to help her with the housework, and her children and grandson pitch in at times as well. While Claimant and her husband shared yardwork duties prior to the injury, now he does all of it. Claimant loved working in the yard. The following exchange took place: Q. And who s had to do the grocery shopping since the injury? A. I Charles [her husband]. I had problems like pushing the buggy, like if it has any weight that amounts to anything, it would just set my neck off good. And, of course, now we both go sometime, but a lot of times I don t feel like going, so I just sit in the car and let him go. While she used to teach cake-decorating, she can no longer do this. She formerly was a Sunday School teacher and helped maintain her church. Now, unfortunately, she do[es] good to go and s[i]t on a pew a little while. Although she tries to maintain weekly attendance, at times it is not possible because of her pain. When she goes, she remains seated because even to remain standing long enough to sing a hymn hurts too much. Because of her condition, a road trip from her home to Little Rock (such as the one the did the day of the hearing) involves up to three stops to allow her to get up and walk around to have some relief. To pass the time, she reads and does embroidery and appliques. She summed up her testimony: You know, I just really hurt most of the time. On cross-examination, Claimant testified that she saw Dr. Ricca five or six times between 2013 and 2015, and that Dr. Hart recommended him to her. She never had any issues with Ricca; in fact, she liked him. Dr. Thomas was the one who operated on her. He did not tell her what he felt was the source of her back trouble.

12 Ferren - Claim No. F Under questioning by the Commission, Claimant stated that she was not prescribed the wheel chair; her husband went and obtained one for her. She elaborated: I was in severe pain that would not let up. We couldn t get it to let up. We had been to the emergency room getting shots, and so that was the only thing we knew to do to get me around in the house to get me to the bed and back and forth and try to get to a doctor was to get a wheel chair. According to Claimant, she has not driven since the day of her accident in The morning of the hearing, she and her husband stopped twice during the drive from Judsonia to Little Rock: once in Searcy, and another time near Jacksonville. On both occasions, the purpose of the stop was to allow her to get out of the car and walk around because she was hurting. She related that this was typical. Claimant s testimony was that she was not referred to Dr. Thomas by one of her earlier treating physicians. She sought him out on her own. Dr. Ricca was deposed on May 8, 2015, and the transcript thereof was admitted as Respondents No. 1 Exhibit 1. Under questioning by Respondents No. 1, 2 Dr. Ricca testified that he first saw Claimant on April 23, Dr. Citty referred her to him. At that time, she presented with pain in her lower back and in both lower extremities that began after she lifted a heavy box of clothing at work in Based on her history and his physical examination, Claimant could not find a specific cause for her symptoms. He obtained flexion/extension x-rays, along with a lumbar MRI and, eventually a bone scan. The MRI, per Ricca, showed that she had mild slip, or the technical term is spondylolisthesis, of L3 on L4, which was subtle. But the most significant finding she had was 2 As the parties agreed at the hearing, Claimant s counsel did not represent her at this time, which explains why no one appeared on her behalf at the deposition.

13 Ferren - Claim No. F marked stenosis with moderate neural compression bilaterally, meaning both sides, from stenosis at L4-5. That was the greatest pathology, greatest nerve compression. It was compressing the L5 root, and it was consistent with the numbness that went into her great toe, the L5 nerve that goes to the great toe. Despite this testing, the doctor testified: I did not come up with a clear cause of her symptoms in Claimant continued to see Ricca periodically. She saw him in May 2014 for neck symptoms and in December 2014 and March 2015 for lower back issues. At that time, according to the doctor, She reported pain in her low back, particularly the right side of her low back, with radiation into both hips and into the right thigh, as well as the left lower extremity with left lower extremity numbness. She had numbness particularly in the left great toe. Dr. Ricca opined within a reasonable degree of medical certainty that Claimant s work-related injury did not cause her stenosis. He elaborated: Stenosis is a slow, progressive problem. It is not a problem of one isolated injury. Now, an injury can strain or stress the joints, stress the ligaments, and contribute to the development of stenosis, but so can twisting, bending, living, walking, sleeping, just the normal day-to-day life of our spine, it s a slow, progressive deterioration. The work injury of lifting a box cannot, in and of itself, be the primary cause of the development of stenosis. Based on Claimant s symptoms not her MRI findings Dr. Ricca recommended that she undergo a surgical decompression. He stated that her results would be better if this were done in conjunction with a fusion at that site. The following exchange took place: Q. Her symptoms her pain symptoms, the things that she has complained of to you, in your medical opinion, are they all related to the stenosis that you have already mentioned this morning?

14 Ferren - Claim No. F A. To me, if you say all, that means all the symptoms she complained of since I saw her on April 23 rd, 2013, and the answer to that would be no. I was not able to identify a structural cause, organic cause of the pain and symptoms she reported when she first met me. When she more recently met me, her history had actually changed, it was more consistent with those of spinal stenosis, and that is why I agreed to surgery. Q. Let me get to it this way. What I m trying to find out is, she has been treating with pain management for multiple years with Dr. Thomas Hart here in Searcy. What I m trying to figure out and get a clear answer to is, is that pain management that she is undergoing, is that related to the original injury, in your opinion, back in 2000, or would that be related to the stenosis that she is suffering from? A. I believe the pain management that she received, particularly prior to her seeing me, from Dr. Hart, and I believe Dr. Hart s office is in Memphis I mean, Little Rock, not Searcy. But anyway, I believe the treatment that he was giving her was for back pain related to her injury. The thing I don t have is a cause of that back pain other than the reports of a work injury. Q. Is it your opinion that the symptoms that she has complained of that you have examined her in regard to, is it your opinion that those things are caused by the stenosis, then, as opposed to the original injury back in 2000? A. If you are asking about the symptoms that I saw her for in the end of 2014, beginning 2015, I think those are from the stenosis and not from the work injury. Q. Do you think there is anything, as far as her complaints of pain, that are related back to that original 2000 injury, as far as your treatment of her is concerned? A. I was not able to find anything that I could say the work injury caused the structural organic problem that caused the pain she reported. Q. All right. Is there any reason that you think that she needs to continue with pain management as far as that 2000 work injury? A. Not to my knowledge, no, sir. And the reason why I say that is, I was not able to identify a structural cause. Q. Okay.

15 Ferren - Claim No. F A. If pain is accepted as a symptom just by itself, well, then, if we go by her history, she should still get treatment for that pain or I take that back. She very well may want to still get treatment for her pain. I don t think I should say she should. But if we are going to go by reasonable degree of medical probability, structural abnormalities, confirmatory tests, and findings on exam, a reasonable history that fits with something we can identify, I come up with nothing. Evidence Medical Records. Claimant s Exhibit 1 details the treatment she has undergone in connection with her compensable injuries. On January 13, 2000, she presented to Searcy Medical Center with severe lower back pain. She was prescribed, inter alia, Flexeril. Claimant still presented with this pain, along with chest pain, on January 25, She related that she hurt her back when she picked up a box of throw-aways. The doctor on January 25, 2000 wrote that she had a probable HNP [herniated nucleus pulposis]. A lumbar MRI the next day, according to Dr. Mark White, showed a bulging disc with a broad dorsal herniation at L4-5. Dr. Citty on January 27, 2000 recommended a neurosurgical consultation. Dr. Anthony Russell on February 11, 2000 wrote that the MRI showed only mild stenosis at L4-5,and that he saw nothing that would explain her bilateral lower extremity complaints. He ordered a lumbar myelogram and a CT scan. Dr. Randy Maddox read her MRI to show an L4-5 disc protrusion. She presented to him with neck as well as lower back pain. Claimant also did this with Dr. Ron Williams on May 11, He ordered MRIs of the thoracic and cervical spines. He read her lumbar MRI to show a bulging disc at L4-5 that is of mild to moderate nature. On July 3, 2000, Dr. Citty wrote a letter concurring with the recommendation of cervical and thoracic MRIs and added that his nurse confirms the fact that on several occasions there were complaints of neck and upper thoracic pain and

16 Ferren - Claim No. F this is alleged true by the patient. On July 11, 2000, Claimant underwent the MRIs. The thoracic MRI was normal, while the cervical one showed a small central disc herniation at C6-7. Williams wrote: Ms. Ferren s MRI of the thoracic and cervical spine show some bulging discs but no well-defined nerve root compromise. I don t see anything here that is going to require surgery. I thought we would try a lumbar epidural steroid injection on her. I would also like to try to get a work evaluation done on her to see if it is safe for her to return to work. On August 24, 2000, he wrote Claimant s then-counsel: I initially saw Ms. Ferren on May 11, 2000 and at that time she indicated to me that she had never had any difficulty with her neck or back until she injured it lifting a box at work on January 13, If that is the case, this should be considered the cause of her need for medical care. Claimant underwent a functional capacity evaluation, but failed to complete it because of complaints of pain. Dr. Williams on December 5, 2000 recommended additional MRIs of her cervical, thoracic and lumbar spine. On April 23, 2001, Claimant saw Dr. John Wilson. He assessed her as having, inter alia, rib facet syndrome on the right. He recommended a facet injection. Dr. Williams on June 5, 2001 wrote that the lumbar MRI showed only degenerative changes. However, the MRI that took place on that date was read by Dr. Kathleen Sitarik to show, inter alia, straightening of the normal lumbar lordosis. On May 21, 2003, Claimant returned to Dr. Williams. She reported that she had undergone a percutaneous discectomy that as of yet had not been effective in helping her lower back. Williams recommended a cervical MRI, writing incorrectly, she has never had her neck studied. However, on May 28, 2003, Williams wrote: Ms. Ferren s MRI of the cervical spine shows degenerative disc disease and mild bulges at C4-5, C5-6 and C6-7, but no ruptured discs. Therapy seems

17 Ferren - Claim No. F to aggravate her discomfort and she has a reaction to steroids, so there is probably not much else to do. He wrote Claimant s attorney on November 11, 2003: Ms. Ferren indicated to me in her original history that she had never had any difficulty with her back or neck until she injured herself at work on January 13, Treatment and healing period from then up until 3/19/03 would have been for that work injury. Dr. Jim Moore performed an independent medical evaluation on December 22, His conclusions read: 1. I feel that the patient has cervical and lumbar DDD [degenerative disc disease] with radiculitis. The patient s complaints tend to be in excess of what can be demonstrated on the diagnostic studies and on the physical examination. 2. Based upon a level of stability I would anticipate that she would be considered at MMI. I will address a consideration for a rating after I complete the other questions. 3. Yes. I would consider these as trauma superimposed on pre-existing. 4. No. She is currently on social security disability benefits. 5. Supportive, to include some strengthening such as a swimming program. A TENS unit might well be quite invaluable to her use as would home cervical traction. So far as a rating is concerned I would consider AMA Guidelines, 4 th Edition, page 110, Table 73, DRE Impairment Category II, 5% permanent partial to the body as a whole so far as the cervical. Consider Table 72, same page, DRE Category Impairment Lumbar II and III which would translate to 7½% permanent partial to the body as a whole for a total of 12.5% PPD. He diagnosed her as having cervical and lumbar degenerative disc disease. The June 6, 2005 note from Dr. Hart reads in pertinent part: [Claimant] has a diagnosis of multilevel cervical spondylosis, multilevel cervical disc disease, disc protrusions, a noted herniation at C6-7, as well as multilevel lumbar disc disease. She recently had an exacerbation of her back pain complaints. I did obtain an updated MRI which did show a disc protrusion at 4-5, some minimal scarring and some disc bulge centrally at the

18 Ferren - Claim No. F level, as well as some osteoarthritic changes of the facet. Because of her back pain complaints, I discussed at that time that she does not appear to be a surgical candidate. I would recommend an epidural steroid injection... I discussed with Ms. Ferren that [no] doubt I think she needs to continue her narcotic analgesics. She has never demonstrated any misuse, abuse or any drug seeking or addictive behavior. Claimant continued to undergo pain management by Dr. Hart, who wrote on August 29, 2005 that she is doing relatively well with pharmacological management. This treatment continued for years. An updated cervical MRI was obtained on February 22, This, according to Dr. Jason Beck, showed multilevel spondylitic changes with mild foraminal narrowing on the right at C4-5, left at C5-6 and bilaterally at C6-7. The MRI also reflected mild canal stenosis at C5-6 and C6-7 with findings likely representing a small broad-based central protrusion at the C6-7 level which does not appear to cause significant mass effect on the cord at this level. Dr. Hart saw her on March 19, 2007 and wrote that she had presented with increasing left neck and left upper radicular pain. He noted that she had degenerative findings at C4-5 and C5-6, but found more concerning her C6-7 findings. Hart recommended a cervical epidural steroid injection. The injections took place on March 21 and April 4, She reported some improvement to Hart on April 16, The third was administered on April 18, On July 9, 2007, Claimant reported having improvement, but added that she was still having difficulty turning her head. Dr. Hart recommended radiofrequency denervation from C2-3 through C6-7. This was done on July 18, She reported improvement on September 10, Claimant told Hart on December 20, 2007 that she had experienced increased back, buttock and lower extremity

19 Ferren - Claim No. F pain after feeling a snap following reaching for something. He recommended an updated lumbar MRI. The evidence does not reflect that this occurred; but on February 29, 2008, she reported that she was doing well overall. On September 18, 2009, Claimant reported to Hart s office that her neck pain had increased greatly and that she wanted to undergo another procedure. He recommended an epidural steroid injection. A cervical MRI on October 14, 2009 showed nothing requiring surgical treatment; other than slight straightening of the lordotic curvature, she had the same, primarily degenerative, findings as before. He noted that no herniation was found. The injection took place that same day. Claimant reported a 50 percent improvement in her neck pain and a decrease in her paresthesias, but some numbness and intermittent paresthesias in the C6 distribution. On April 23, 2010, Dr. Citty wrote Claimant s then-counsel: It is my considered medical opinion that this patient continues [to be] permanently disabled as a result of an occupational accident occurring in the year She received Social Security benefits in the year She currently continues in pain management therapy. The quality of her life is affected, her employment capabilities are zero and as stated she remains permanently disabled in spite of strong medications and interventional pain therapies such as epidural steroid injections. Claimant informed Dr. Hart on June 21, 2011 that she was having back spasms. An updated lumbar MRI showed some significant progress of her multilevel lumbar disc disease from her initial on the job injury. The MRI found large diffuse bulges at L3-4 and L4-5. She had an annular tear at L4-5 as well. Her stenosis was noted to be worsening especially abutting the exiting L3 nerve. Dr. Hart wrote that no doubt she has had significant progression of her pathology since her last MRI, and referred her to Dr. Reza Shahim for a neurosurgical consultation. On September 28, 2012, Hart saw her again and vented in her medical report his frustration with her treatment situation, stating:

20 Ferren - Claim No. F Again it is thankful that Ms. Ferren is not a cancer patient. Obviously she would be long gone by now if she had to depend on worker s comp. She would be better off as an indigent. He was unable to get her in to see Dr. Shahim, so he referred her to Dr. Ricca. However, Respondents did not approve this either, so Hart wrote on December 14, 2012: It is shameful and pathetic what is occurring and that she has not been approved to be seen by the neurosurgeon. She has a well-documented MRI as well as physical and history indicating neurogenic claudification. Dr. Michael Calhoun performed an independent medical evaluation at the request of Respondents No. 1 on August 29, His report reads in pertinent part: The patient has been on long-term or medications [sic] and followed by [a doctor] for many years, even though she has degenerative changes on her MRI, I feel the major protruding [sic] cause [of] her continued need for treatment under his care is to the work injury in I feel [it would] be almost inhumane to stop her care after such a long period of time. In addition, she [has] had worsening of her problems on the lumbar MRI done in 2011 as compared to the one [in] I do think [it] would be worthwhile for her to undergo a surgical evaluation. It was explained to the patient [and] her husband that with the length of time her symptoms have been occurring, it is doubtful surgery [would] be the answer but it would be worthwhile to obtain an evaluation. Firstly, I wold not suggest surgery because [of the] length and time involved. In the letter I received [I] was not asked to voice [an] opinion about surgery. It is also of note, that the patient stated she had [a] cardiac [echogram] which was essentially normal. The documentation [in] the medical records that says she cannot undergo further surgery because of her cardiac issues is incorrect. Dr. Ricca first saw Claimant on April 23, She presented with back pain that radiates into her legs. He reviewed her July 6, 2011 and disputed the finding that it 3 There is a handwritten marginal notation on the report of this visit that appears to have been authored by Claimant. I have given it no consideration. Also, Ricca s records in evidence are somewhat mixed up. I have endeavored to discuss them in chronological order.

21 Ferren - Claim No. F showed moderate/severe stenosis, stating that [t]here is mild effacement of the left L4 root and not compression of the right L4 root. Ricca added: I am still not able to arrive at a definitive diagnosis and treatment plan. She has stenosis at L3-4 and L4-5 and surgery (decompression) for spinal stenosis often helps low back pain that radiates into the lower extremities. I am concerned that a decompression in this case will leave her with a lot of back pain as her history is not of a person with symptomatic spinal stenosis. Unrelenting mechanical LBP often needs a fusion. I have not been able to identify a pathology that would point me to a particular level as the cause of Ms. Ferren s LBP so I am not able to recommend a fusion. Furthermore her back pain bothers her when she is active and when she is at rest and this is not what we would call mechanical LBP. This type of pain generally does not respond well to surgery. To try to identify a bad level that could be causing her pain I ordered a bone scan. I was told that her insurance would not approve a bone scan until I reviewed the lumbar MRI. Options at this time include trying to live with the symptoms, decompressing the nerves at L3-4 and L4-5 or getting a bone scan to see if we can identify an isolated bad level. Another complicating factor is that the greatest pathology I can identify is progressive spinal stenosis that is worse now than it was in She has had back and bilateral LE pain for 13 years and the stenosis I see on the current study was not present 13 years ago. After reviewing all of the above Ms. Ferren requested that we get a bone scan to see if anything could be done. I think this is reasonable. At another point, he wrote: She clearly has spinal stenosis and compression of the neural elements at L3-4 and L4-5. This can cause LBP and bilateral LE pain but generally stenosis does not cause such marked constant LBP that bothers a person day and night, whether they are standing, walking, sitting or lying. On May 21, 2013, Dr. Ricca reviewed the lumbar MRI that was conducted on May 17, 2013, and wrote that it was worse than the July 6, 2011 study but did not show anything that would make him reconsider his earlier opinion. The bone scan that was performed on June 11, 2013 showed mild increased activity at L3-4 that was consistent with spondylosis. Ricca stated that [t]his is all minor and [t]here is nothing striking about this study. On June 17, 2013, Dr. Ricca wrote:

22 Ferren - Claim No. F I still am not able to clearly identify the cause of her pain. Tests for SI joint mediated pain today were negative. Her bone scan with SPECT of the lumbar spine does not identify a particularly bad level. MRIs from 2005, 2011 and 2013 show progressive stenosis at L3-4 and L4-5. The stenosis now is impressive but it was not there 13 years ago. She has slight spondylolisthesis of L4 on L5 that was seen on the MRIs... Ms. Ferren said that her pain is debilitating and she cannot continue living with this pain. I want to do all I can to help her but I do not want to do lumbar surgery that will be of no benefit. It is very tempting to decompress the nerves at L3-4 and L4-5 but as stated previously, the spinal stenosis she has now, was not present 13 years ago and surgery to correct recent spinal stenosis would not be expected to help symptoms that would be consistent with discogenic pain... In summary, at this point, I am not able to identify a structural cause or structural/surgical treatment that can help Ms. Ferren. Claimant returned to Dr. Hart on December 30, 2013, and related that she had suffered a fall and had to undergo surgical rotator cuff repair. He wrote: I discussed with Ms. Ferren no doubt she has a complicated spine. Unfortunately she had a setback when she had the fall and had the rotator cuff repair. At this point I state with a degree of medical certainty and probability she probably needs to follow up with Dr. Ricca her neurosurgeon and go over the most recent MRI if she can get a copy of that from the orthopedic surgeon about her neck as well as her lower back. She returned to Ricca on December 19, He reviewed her May 17, 2013 lumbar MRI and found it to show degenerative disc disease throughout her lumbar spine, slight spondylolisthesis with marked bilateral recess stenosis at L3-4 with marked bilateral L4 root compression, generous broad-based bulge with marked severe bilateral lateral recess stenosis and bilateral L5 root compression, and a small tear at L4-5. He found that her history is strongly indicative of left L5 root dysfunction with a foot drop and tripping falling and he opined that surgery would help her back and lower extremity pain and history of left foot weakness. A lumbar MRI on January 21, 2015 showed advancing degenerative disc disease that was most significant at L4-5, with a slight progression at L3-4 as well. Claimant saw Dr. Ricca again on March 19, 2015 and presented with worsening

23 Ferren - Claim No. F left lower extremity symptoms. At that point, he wrote: I think surgery is reasonable and appropriate. He recommended a posterior lumbar interbody fusion at L3-4 with decompressions at L3-4 and L4-5. Respondents discontinued all treatment apparently after Dr. Ricca s May 8, 2015 deposition. See supra. Claimant went back to Dr. Hart, and he was indignant at the actions of Respondents No. 1: On presentation today I found it somewhat peculiar, in fact pathetic that all of a sudden worker s comp now is trying to claim that after all of these years from her legitimate on the job injury that the claim is no longer valid. This is inappropriate, inaccurate. I mentioned to Ms. Ferren today that there has not been any divine intervention or nobody has done anything to take away her chronic intractable neck and back pain complaints. If work comp says that they are no longer claiming her lumbar spine what about her neck[?] She still has significant neck pain complaints. She still takes analgesics for that. All of a sudden to take away her pain medications is inappropriate and I state this to a degree of medical certainty and probability. He added: [T]o a degree of medical certainty and probability she needs some decompression of her lumbar stenosis to decrease her neuropathic pain. On June 19, 2015, Hart wrote: I think at this point it would be made perfectly clear that her cervical and lumbar spine [problems] are from her on the job injury and the reason she has been taking the medications are directly related to her injury for her acquired stenosis and her lumbar spine which does need surgical decompression eventually. It was pointed out by Dr. Ricca, she may require spinal fusion which is directly related to her on the job injury. He continued to furnish her pain medications, including Fentanyl, and recommended radiofrequency nerve blocking again for her cervical spine. On April 14, 2016, Claimant first saw Dr. Brad Thomas. He ordered updated cervical and lumbar MRIs. Dr. Thomas operated on June 2, 2016, performing a right-sided laminotomy for decompression at L4 and L5 and a right-sided microdiscectomy at L4-5.

24 Ferren - Claim No. F The pre and post-operative diagnosis was [r]ight-sided L4-L5 stenosis and herniated disc. The operative notes read: An MRI showed stenosis in the lateral recess and a herniated disk at L4-L5. The next day, Thomas operated again, performing a complete laminectomy at L4 and L5 and the removal of a recurrent disc on the right at L4-5. The pre and postoperative diagnosis was [r]ecurrent herniated disk on the right at L4-L5 with stenosis. The operative notes read: After reviewing the MRI [performed after the first surgery] I felt like she had continued stenosis and possibly recurrent herniated disk. I recommended taking her back to surgery for an exploration and further decompression. When Claimant returned to Dr. Hart on June 20, 2016, he was still aghast the Respondents No. 1 had controverted pain management for her neck including a repeat radiofrequency procedure based on the position they took about her lower back. She reported to him that she had significant improvement in her lower back pain. Claimant went back to Dr. Thomas on that same day and reported that she was doing great overall, with no real leg pain. She reported a slight increase in pain to him on June 27, On June 29, 2016, she underwent another lumbar MRI, which Thomas wrote on June 30, 2016 showed nothing of significance. She reported feeling much better. He found that she had some good improvement as a result of the surgery, and prescribed physical therapy. Returning on September 8, 2016, Claimant told Dr. Thomas that the therapy did not help much. He wrote that she was slowly improving and was doing much better than she was on her previous visit to him. Claimant continued to follow up with Dr. Hart for pain management. On December 5, 2016, she told Hart that she did not get as much relief with her lumbar surgery as she had hoped would occur. He continued to recommend that she undergo another

25 Ferren - Claim No. F radiofrequency procedure for her cervical condition. Claimant underwent more physical therapy in connection with her back. But nothing in evidence indicates that Dr. Thomas has yet released her from treatment. Adjudication A. Procedural History An assessment of the issues at bar first requires a recounting of the procedural history of this claim. In 2001, a hearing was held on this claim before Administrative Law Judge Don N. Curdie. His March 28, 2001 opinion contains the following findings of fact and conclusions of law: 1. [The stipulations set forth below are reasonable and are hereby accepted:] A. The Arkansas Workers Compensation Commission has jurisdiction of the within claim. B. The employer-employee-carrier relationship existed between the parties on all relevant dates. C. That the claimant sustained a compensable injury to her lower back on January 13, That the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury to her cervical spine or neck on January 13, That the claimant has failed to prove by a preponderance of the evidence the existence of a causal relationship between her need for treatment of her neck condition and her compensable injury of January 13, That the claimant has failed to meet the required burden of proof which would entitle her to temporary total disability benefits after June 6, That the claimant s request for attorney s fees should be denied because the claimant has failed to prevail in any of the issues controverted herein.

26 Ferren - Claim No. F Claimant appealed. In a decision handed down on February 21, 2002, the Full Commission reversed, finding that Claimant proved that she suffered a compensable neck injury and that she was entitled to treatment of it. Respondents appealed. The Arkansas Court of Appeals affirmed the decision of the Full Commission on April 30, See Searcy Ind. Laundry v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). On February 4, 2004, another hearing was held before Judge Curdie. His March 18, 2004 opinion contains the following findings of fact and conclusions of law: 1. [The stipulations set forth below are reasonable and are hereby accepted:] A. The employer-employee-carrier relationship existed between the parties on all relevant dates. B. The claimant s total disability rate is $ C. The claimant sustained a compensable injury to her low back on January 13, The preponderance of the evidence reflects that the claimant s claim for additional temporary total disability is barred by the doctrine of res judicata. Claimant appealed. In a decision handed down on October 28, 2004, the Full Commission again reversed the administrative law judge, finding that Claimant s claim for additional temporary total disability benefits was not barred by res judicata, and that she met her burden of establishing that she was entitled to additional temporary total disability benefits from June 7, 2000 through March 19, See Ferren v. Searcy Ind. Laundry, 2004 AWCC 192, Claim No. F (Full Commission Opinion filed October 28, 2004). Respondents appealed. The Arkansas Court of Appeals affirmed the decision of the Full Commission on June 22, See Searcy Ind. Laundry v. Ferren, 92 Ark. App. 65, 211 S.W.3d 11 (2005). These opinions are binding on this proceeding under the Law of the

27 Ferren - Claim No. F Case Doctrine. See Thurman v. Clarke Industries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). B. Additional Treatment Introduction. In this action, Claimant is seeking additional treatment of her compensable injuries. During the hearing, the following colloquy took place: THE COURT: Counsel, I want to be sure I understand. The treatment that she is seeking now is is payment for these two surgeries by Dr. Thomas and pain management thereafter; is that correct? MS. YORK: Yes, from the date it was stopped, which was the date of Dr. Ricca s deposition, I believe. Respondents No. 1 dispute her entitlement to this treatment. Standards. Arkansas Code Annotated Section (a) (Repl. 2012) states that an employer shall provide for an injured employee such medical treatment as may be necessary in connection with the injury received by the employee. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). But employers are liable only for such treatment and services as are deemed necessary for the treatment of the claimant s injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). The claimant must prove by a preponderance of the evidence that medical treatment is reasonable and necessary for the treatment of a compensable injury. Brown, supra; Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The standard preponderance of the evidence means the evidence having greater weight or convincing force. Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). What constitutes reasonable and necessary medical treatment is a question of fact for the Commission. White Consolidated Indus. v. Galloway,