BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION RICKEY SMITH, EMPLOYEE CITY OF EL DORADO, EMPLOYER ARKANSAS MUNICIPAL LEAGUE, INSURANCE CARRIER

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NUMBER G RICKEY SMITH, EMPLOYEE CITY OF EL DORADO, EMPLOYER ARKANSAS MUNICIPAL LEAGUE, INSURANCE CARRIER CLAIMANT RESPONDENT RESPONDENT OPINION FILED FEBRUARY 9, 2016 A hearing was held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, in Union County, El Dorado, Arkansas. The claimant was represented by Mr. F. Mattison Thomas III, Attorney at Law, El Dorado, Arkansas. The respondents were represented by Mr. Keith Wren, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was held in the above-styled claim on January 20, 2016, in El Dorado, Arkansas. A Prehearing Telephone Conference was conducted on November 17, 2015, from which a Prehearing Order was filed on that same date. The following stipulations were submitted by the parties either pursuant to the Prehearing Order, or during the hearing. I hereby accept the following proposed stipulations. 1. The Arkansas Workers Compensation Commission has has jurisdiction of the within claim. 2. The employee-employer relationship existed at all relevant times, including December 2, The claimant s average weekly wage on December 2, 2014, 1

2 was $512.47, which would entitle him to compensation rates of $342 and $ All issues not litigated herein are reserved under the Arkansas Workers Compensation Act. 5. This claim has now been controverted in its entirety. By agreement of the parties, the issues to be litigated at the hearing were limited to the following: 1. Compensability of claimant s alleged back injury of December 2, Whether the claimant is entitled to additional medical benefits. 3. Temporary total disability benefits from December 3, 2014, to a date yet to be determined. 4. Attorney s fees. The claimant s contentions are set forth in his responsive prehearing filing. Said contentions are hereby incorporated by reference. The respondents contentions are also set forth in their prehearing filing. These stipulations are hereby incorporated by reference. During the hearing, the parties made additional contentions, which are hereby incorporated herein by reference. The documentary evidence in this case consists of the January 20, 2016, hearing transcript and the documents contained therein. The following witness testified at the hearing: the claimant. 2

3 DISCUSSION The claimant, age 58,(8/28/57) testified that he worked for the City of El Dorado for 18 years. His employment duties included, but were not limited to picking up material, hauling logs to the dump and digging ditches. The claimant also assisted in the demolishing of condemned houses. He testified he last worked for the respondent-employer on December 2, The claimant essentially stated that he sustained a work-related injury to his back on that date. Specifically, according to the claimant, on that date, he slipped off the side of his company truck and injured his back, after hitting it on the box. The claimant verified that prior to this work-related incident, he had prior back problems, which resulted in him undergoing back surgery. In September of 2014, the claimant told management that he was having some problems with his back. Ultimately, Dr. Richard Peek performed back surgery in October of According to the claimant, following his back surgery, he felt good, and was released to return to work, effective December 1, The claimant essentially testified that at that time, Dr. Peek released him without any physical restrictions or limitations. The claimant testified that he was able to perform his employment duties on December 1, 2014, without any problems or difficulties. He was also able to perform his job duties on December 2, 2014, 3

4 without difficulties as he torn down condemned house until his work-related incident. According to the claimant, he hit his back on a box on the truck during his slip. The claimant reported the incident to his supervisor, Mr. Raley. However, the claimant told his supervisor, he wanted to wait to see if he felt better before going to the doctor. He also reported the incident to Mary Hill, the human resource person. It appears that the claimant continued with excruciating back pain and related symptoms. As a result, the claimant sought medical treatment from the company doctor, Dr. Greg Smart, on that same date. After the claimant s medical treatment with Dr. Smart failed to improve his symptoms, he referred the claimant to Dr. Brent Sprinkle. Ultimately, Dr. Sprinkle referred the claimant to Dr. Peek. Upon further questioning, the claimant verified that he was taken off work and placed on light-duty restrictions. However, the claimant testified that the respondent-employer did not have any light-duty work available. The claimant denied that Dr. Peek has released him to return to work as of the date of the hearing. Regarding his current symptoms, the claimant admitted that his back pain is in the same area required previously required surgery. He described his physical condition as being not good. He stated that he hurts and is unable rest. According to the claimant, he is up at 3:00 a.m., every morning. The claimant testified that he 4

5 takes anxiety medication and Oxycodone. He testified that he is now ready to undergo the recommended surgery. A review of the medical evidence demonstrates that the claimant previously underwent lumbar surgery by Dr. Richard Peek on October 15, The Operative Report states, in relevant part: PREOPERATIVE DIAGNOSIS Spondylolisthesis and spinal stenosis L5-S1. POSTOPERATIVE DIAGNOSIS Spondylolisthesis and spinal stenosis L5-S1. PROCEDURE Posterolateral fusion L5-S1 with a cancallous allograft and local bone, and right laminectomy and decompressive foraminotomy L5-S1 with decompression L5 nerve. Dr. Peek released the claimant to return to work at regular duties, effective as of December 1, On December 2, 2014, the claimant sought treatment from Dr. Greg Smart: HISTORY: Ricky Smith is seen in clinic with complaints of back pain. He stepped on a foot peg that was loose. The battery box slipped, knocked him off the truck, and he landed on his left side. He complains of back pain. He is postop back surgery. He had surgery six weeks ago per Dr. Peek and was just released to return to work the day prior to this injury. Mr. Smith complains of pain of the lower back, some pain radiating into the left leg and some pain radiating into the right leg. The surgery was performed 10/15/14. Mr. Smith states that he had extensive surgery but is not completely sure of what surgical procedure was performed. * * * ASSESSMENT: 1) Back Pain 2) Bilateral leg pain 3) Status post back surgery 5

6 PLAN: Mr. Smith indicates that he was not performing strenuous activity. He states that the current injury was an accident as the battery box was not secured in place. He is placed temporarily on light duty - no climbing, no driving, no lifting greater than 10 lbs. I ll see him in one week for followup. Will make further recommendations pending clinical response. If the symptoms persist certainly consider followup appointment with orthopedics - neurosurgery and consider further diagnostic studies. Call prn complications. Continue current medications prescribed by Dr. Peek. Apparently, he has Oxycodone and a muscle relaxer available. The claimant returned to Dr. Smart on December 8, 2014 for a follow-up visit. Specifically, Dr. Smart reported the following in a clinic note on that same date: Ricky Smith is seen in clinic today for followup. He fell last week. He stood upon on a foot peg battery box, slipped and knocked him down. He fell off the truck and has suffered low back pain. He initially had rather severe left leg pain. The right leg pain was less severe. Today s symptoms mainly involve the lower back, probably more right sided than left sided, some burning sensation into the right leg. He states that the symptoms are very similar to what he had prior to surgery 10/15/1 per Dr. Peek. PHYSICAL EXAMINATION: He is alert, complains of lower back pain. Blood pressure 130/66. Weight 198 lbs. HEENT; Unremarkable. Neck - Good range of motion. Lungs - Clear. Heart - RRR. Abdomen - Negative. Back - Still restricted range of motion, forward bending restricted, lateral bending restricted bilaterally. No obvious strength deficits of the lower extremities are noted. Straight leg raising produces mild back discomfort bilaterally. No hip abnormalities are noted. Knees reveal an adequate range of motion. Reflexes 1+ equal bilaterally - knee jerk and ankle jerk reflexes. ASSESSMENT: 1) Back pain 2) Right leg burning sensation 3) Status post back surgery per Dr. Peek PLAN: Mr. Smith has persistent symptoms. He has not 6

7 returned to work for the past six days. I saw him last week - mid-week (12/02/14) and this Monday morning he is still very symptomatic. He is certainly not able to tolerate regular duties and is at risk of performing any work type activity at this point due to the severity of the pain. He has an appointment scheduled with Dr. Peek within the next couple of weeks. However, my recommendation is to see if we can get him in with Dr. Peek for more immediate follow-up, and then follow Dr. Peek s recommendations and further diagnostic studies as indicated. Mr. Smith is to remain off work until released by Dr. Peek. A copy of this will be sent to Jessica Henders, claims adjuster at ,in the a.m. Call prn complications. On January 2, 2015, the claimant underwent evaluation by Dr. Brent Sprinkle, due to back pain in the lower region. The claimant reported the quality of his symptoms to be burning, throbbing and radiation into his leg. The claimant rated his pain in severity as being a 7 to 8 out of ten, and affecting his daily activities, worse since onset. His symptoms had a duration of three to four weeks. Dr. Sprinkle noted, in relevant part: Context Reported: recent trauma; DOI 12/02/2014 slipped while getting out of truck and fell, landed on back, fell or jumped from high place, recent radiological exams related to back pain symptoms,;[sic] radiograph, history of back surgery. Denied: recent new exercise or heavy lifting, repetitive motions. Modifying Factors Reported: worsens with standing, lifting, twisting, bending, walking, stairs, and sitting, improves with medication. Associated Signs and Symptoms Reported: paresthesia in right leg, muscle weakness in right leg. Denied: bladder and bowel dysfunction, saddle anethesia, difficulty walking. 7

8 * * * Musculoskeletal-reported: back Problems Denied: Arthritis joint pain, gout, deformities, joint stiffness, muscle cramps, muscle stiffness, paralysis, restricted motion weakness. Assessment * * * Diagnosis This patient has a clear history of chronic low back pain, for which he underwent bilateral L5-S1 foraminotomy and lumbar fusion on October 15 of this year, it is somewhat surprising he was able to return to work so soon after fusion surgery. His work injury is most likely just an aggravation of a pre-existing problem. I do think the meralgia paresthetica is likely related to his work injury not necessarily a pre-existing condition Degen Lumbar Intervent Disc 7213 Lumbosacral Spondylosis 7291 Myositis Congen Spondylolysis Lumbosacral 3551 Meralgia paresthetica Plan Office Procedures: Workemans[sic] Comp - Init report; Initial Eval report - Office Procedure: A-Z: Inj - Lat Fem Cut Procedure: Ultrasound uided lateral femoral cutaneous nerve block Diagnosis: Diagnosis Meralgia Paresthetica * * * Care Plan Treatment Option: Medical Decision Making The risks vs. benefits and pros and cons of the treatment options were discussed and any questions were answered and the patient demonstrated good understanding of the discussion. The Imaging Study report is reviewed and discussed with the patient, recent lumbar x-rays show L5-8

9 S1 spondylolisthesis and degenerative disc disease, no evidence of new injury or fracture. Treatment Option: Test Orders EMG/NCV RLE, MRI Lumbar spine, with contrast secondary to history of lumbar surgery. Treatment Option: Work Status Note Return to work no lifting greater than 20 pounds. No frequent bending or twisting, no greater than 10 times per shift. Work status is more related to his preexisting spondylolisthesis and surgery, the patient was on work restrictions from Dr. Peek at the time of injury, there are no new work restrictions as a result of his work injury, so future work status I would defer to Dr. Peek. The claimant presented to Dr. Richard Peek with spinal stenosis, on January 22, Dr. Peek stated the claimant s problem was severe and had worsened. The frequency of his pain was persistent. According to these notes, the location of the claimant s pain was in the bilateral lumbar area, right thigh and right leg. The claimant described the pain as sharp and stabbing. On physical examination, Dr. Peek noted that the claimant s paraspinous tone was diminished and that he had moderate spasms. Dr. Peek opined that the diagnostic radiographic report AP and lateral of the spine revealed fusion in appropriate position with appropriate progress. No metastatic or blastic lesion were seen or that any new fracture was present. Dr. Peek assessed the claimant with Degeneration of lumbar or lumbosacral intervertebral(722.52) further diagnostic evaluations ordered today include X-RAY EXAM LUMBAR SPINE (2)[sic] to be perform on 01/22/2015. An MRI of the claimant s lumbar spine was performed with and 9

10 without contrast on that same date. Dr. Michael Kendrick rendered the following impression: Multilevel degenerative change is associated with postoperative change at L5-S1. At L5-S1 there is no finding of recurrent disc herniation. Degenerative findings at L5-S1 contribute to moderate to severe bilateral foraminal stenoses [sic]. On that same date, the claimant underwent an EMG Study, with the following results: Peek: Summary/Interpretation: No electrodiagnostic evidence of a lumbar radiculopathy, peripheral neuropathy, or focal tibial or peroneal nerve entrapment is seen in the extremity tested today. Lateral femoral cutaneous nerve conductions were attempted but not obtainable, this can be a technically difficult nerve to study, its absent response is supportive but does not absolutely confirm meralgia paresthetica as an explanation for the lateral thigh sensory complaints. On February 19, 2015, the claimant underwent evaluation by Dr. History of Present Illness The problem is severe. The problem has not changed. The frequency of pain is persistent. Location of pain is in the bilateral lumbar area. Location of weakness/numbness is in bilateral lumbar area and right leg. The pain is radiating to the right thigh. The patient describes the pain as stabbing and burning. Aggravating factors include bending, changing positions, climbing stairs, coughing, lifting, pushing, sitting, standing, and walking short distances. Relieving factors tried include pain medications/drugs. Associated symptoms include decreased mobility, numbness, spasms, tenderness, tingling in legs and tingling in thighs, weakness in legs, weakness in thighs, and numbness in the thigh. * * * 10

11 Assessment/Plan Spinal stenosis of lumbar region(724.02) Further diagnostic evaluations ordered today include X- RAY EXAM LUMBAR SPINE[SIC](2)to be performed on 02/19/2015. Continue current medication. Medications were reviewed with patient. Today s instructions/counseling includes advised to follow exercise program. Patient is to do some type of exercises every day either walk, bike, swim, or similar activity even if for a short period. If a particular activity or exercise is painful patient should avoid that. Patient should avoid long periods of bed rest. Pain management techniques were discussed. Symptom management was discussed with the patient. Patient understands treatment options and made an informed decision. The patient was given reassurance. The patient was instructed to follow up in 2 months. Patient was advised to avoid bed rest longer than 3 days, proceed to ambulation, and continue normal activities as tolerated. Degeneration of lumbar or lumbosacral intervertebral disc (722.52) Continue to be disabled from employment Post-surgical arthrodesis status (V45.4) apply for social security [sic] Spondylolisthesis, congenital (756.12) Diagnostic Radiographic Report: AP and lateral of spine reveals fusion in appropriate position with appropriate progress. No metastatic or blastic lesions are seen. No new fractures are present L5-S1. Roxycodone 30 mg. 180 r32 ADJUDICATION The claimant contends that he sustained a compensable back injury on December 2, 2014, while working for the respondent employer. Although the respondents initially accepted this claim for a back injury as compensable, they have now controverted this claim its entirety. Arkansas Code Ann (4)(A)(i) defines "compensable 11

12 injury" as: An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence[.] A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann (4)(D). The claimant must prove by a preponderance of the evidence that he sustained a compensable injury. Ark. Code Ann (4)(E) (i). On the basis of the record as a whole, I find that the claimant proved by a preponderance of the evidence that he sustained a compensable injury to his back during the December 2, 2014 incident, arising out of and in the course of his employment with the City of El Dorado. Here, the evidence shows that the claimant worked for the respondent-employer for approximately 18 years, performing various laborious employment duties. It appears that during his many years of service with the city, the claimant had a strong work ethic. Hence, I found the claimant to be an extremely credible witness. Nonetheless, on December 2, 2014, the claimant had been performing employment duties, which included demolishing condemned houses. The evidence shows that the claimant stepped on a foot peg that was 12

13 loose. The battery box slipped, knocking the the claimant off the company truck, causing him to land on his left side. The claimant promptly reported his accidental injury to his supervisor, Mr. Raley. At that time, the claimant refused medical attention. However, the claimant continued with increasing pain. As a result, the claimant went to see the company doctor, Dr. Smart, for initial evaluation and medical treatment. The claimant was next referred to Dr. Sprinkle for additional medical care. Ultimately, following the claimant s treatment with Dr. Sprinkle, he was referred to Dr. Peek. Although just prior to the claimant s work incident, he had undergone lumbar surgery by Dr. Peek, he had been released to return to work as of December 1, His testimony and the medical evidence demonstrates that the claimant did not have any physical restrictions placed on him at that time. Nor had the claimant experienced any problems performing his job duties the prior day. The claimant credibly testified that he slipped off the side of the truck. At this point, he felt immediate pain in the area of his prior back surgery. I find that the claimant s back injury is established by medical evidence supported by objective findings, which are found in the medical records, namely, in the form of spasms. Although the claimant suffered pre-existing back problems, for which he underwent surgery, the law is wellestablished in workers compensation law, as pronounced by the 13

14 Arkansas Court of Appeals in Williams v. L & M Janitorial, Inc., 85 Ark. App.1, 145 S.W. 3d 383 (2004), that an employer takes the employee as he finds him, and employment circumstances that aggravate preexisting conditions are compensable. With this in mind, based on the claimant s credible testimony, there being no other testimony to the contrary elicited by the respondents during the hearing, nor any probative documentary evidence showing otherwise, and considering the severity of the claimant s symptoms immediately after the incident and continuing, I find that the claimant proved by a preponderance of the evidence a causal connection between his current back problems and the December 2, 2014, work-related incident. Of note, on January 2, 2015, Dr. Sprinkle opined, His work injury is most likely just a [sic] aggravation of a pre-existing problem. I do think the meralgia paresthetica is likely related to his work injury and not necessarily a pre-existing condition. In summary, based on all the foregoing evidence, I find that the claimant has proven every element of a compensable lumbar injury as a result of the December 2, 2014, work-related incident. I also find that the claimant proved by a preponderance of the evidence that all the medical treatment of record pertaining to his compensable back injury was reasonably necessary in connection with the injury received by the claimant on December 2, 2014, pursuant to Ark. Code (a). Considering that the claimant has 14

15 ongoing complaints of significant back pain, and in light of the fact that Dr. Peek, a specialist, the claimant s treating physician, recommended another back surgery (with there being no expert opinions to the contrary), and because conservative treatment has failed, I further find this procedure to be reasonable and necessary treatment for his compensable back injury. With respect to temporary total disability compensation, I find that the claimant proved that he remained in his healing period beginning on the date of the compensable injury and totally incapacitated to earn wages since December 2, 2014, so as to prove his entitlement to temporary total disability compensation from the December 3, 2014, until a date yet to be determined. The aforementioned was established by the claimant s testimony and the above-referenced medical evidence. I realize that the claimant was released to light duty work; however, his testimony demonstrates that he was told by the respondent-employer that no light-duty work was available. In addition to this, I am cognizant of the fact that on January 2, 2015 Dr. Sprinkle noted that the claimant s work restrictions were related to his pre-existing spondylolisthesis and surgery, and that the claimant was on work restrictions from Dr. Peek at the time of his work injury. This was not the case, at the time of the claimant s work injury, Dr. Peek had not placed any restrictions whatsoever on the claimant s physical activities. The 15

16 claimant s testimony demonstrates that he felt good after his surgery. Under these circumstances, I have placed minimal weight on Dr. Sprinkle s expert opinion in this regard. The parties stipulated that the respondents have controverted this claim for benefits in its entirety. Therefore, the claimant s attorney is entitled to a controverted attorney s fee on all indemnity benefits awarded herein to the claimant, pursuant to Ark. Code Ann FINDINGS OF FACT AND CONCLUSIONS OF LAW On the basis of the record as a whole, I hereby make the following findings of fact and conclusions of law in accordance with Ark. Code Ann The Arkansas Workers Compensation Commission has jurisdiction of the within claim. 2. The employee-employer relationship existed at all relevant times, including December 2, I hereby accept the above-mentioned stipulations as fact. 4. The claimant proved by a preponderance of the evidence that he sustained a compensable back injury on December 2, The claimant proved by a preponderance of the evidence that all the medical treatment of record relating to to his compensable back injury was reasonably necessary in connection with the injury received by the claimant on December 2, The claimant also proved his entitlement to future medical treatment for his back, including the surgery recommended by Dr. Peek. 6. The claimant has remained within his healing period and totally incapacitated to earn wages due to his compensable back injury, so as to entitle him to 16

17 temporary total disability compensation from December 3, 2014 to a date yet to be determined. 7. The claimant s attorney is entitled to the maximum statutory attorney s fee based on the benefits awarded herein. AWARD The claimant has proven that he sustained a compensable back injury December 2, He also proved his entitlement to temporary total disability compensation from December 3, 2014, to a date yet to be determined. The respondents shall pay for all reasonable and necessary medicals awarded herein, to include the recommended back surgery by Dr. Peek, resulting from the claimant s accidental work-related injury of December 2, Maximum attorney fees are herein awarded to the claimant s attorney on the controverted indemnity benefits, pursuant to Arkansas Code Ann All benefits herein awarded which have heretofore accrued are payable in lump sum without discount. This award herein awarded shall bear the maximum legal rate until paid. IT IS SO ORDERED. CB/dr CHANDRA L. BLACK Administrative Law Judge 17

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