{"id":"alj-G106990-2023-04-25","awcc_number":"G106990","decision_date":"2023-04-25","opinion_type":"alj","claimant_name":"Linda Michael","employer_name":"Booneville School District","title":"MICHAEL VS. BOONEVILLE SCHOOL DISTRICT AWCC# G106990 APRIL 25, 2023","outcome":"granted","outcome_keywords":["granted:2"],"injury_keywords":["back","lumbar","hip"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/MICHAEL_LINDA_G106990_20230425.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MICHAEL_LINDA_G106990_20230425.pdf","text_length":35057,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G106990 \n \nLINDA MICHAEL, Employee CLAIMANT \n \nBOONEVILLE SCHOOL DISTRICT, Employer RESPONDENT NO. 1 \n \nARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT NO. 1 \n \nDEATH & PERMANENT & TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 \n \n \n \n OPINION FILED APRIL 25, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents No. 1 represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \nRespondent  No.  2  represented  by  DAVID  L.  PAKE,  Attorney  at  Law,  Little  Rock,  Arkansas, \nthough not appearing at hearing. \n \n STATEMENT OF THE CASE \n \n On  January  26,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on November 14, 2022, and a Pre-hearing \nOrder  was  filed  on  November  15,  2022.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on June 28, \n2011. \n 3. The claimant sustained a compensable injury to her lower back on June 28, 2011. \n\nMichael – G106990 \n \n-2- \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $252.00  for  temporary  total  disability  benefits  and  $189.00  for  permanent  partial \ndisability benefits. \n 5. All prior opinions are final and res judicata. \n 6.  An  Agreed  Order  was  entered  on  September  2,  2014,  indicating  the  claimant’s \nentitlement to 42% wage loss disability above the 14% permanent impairment rating that she had \nat the time. \n 7.  Respondents  No.  1  accepted  and  paid  an  additional  1%  permanent  impairment  rating \nby Dr. Johnson. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant is entitled to permanent and total disability benefits. \n 2. Whether Claimant’s attorney is entitled to an attorney’s fee. \n Claimant’s contentions are: \n“a. The Claimant contends that under the terms of the agreed Order \nthe  Claimant  reserved  the  right  to  seek  additional  permanent \ndisability  benefits  and  allege  permanent  and  total  disability  if  a \ndocumentable change in her permanent condition occurred. \n \nb.  The  Claimant  contends  that  subsequent  to  the  September  2, \n2014,   agreed   Order,   she   has   undergone   additional   surgery, \nreceived    an    additional    permanent    impairment    rating    and \nexperienced  a  worsening  in  her  condition  such  that  she  is  now \npermanently and totally disabled.” \n \n Respondents No. 1’s contentions are: \n \n“Respondents  contend  that  all  appropriate  benefits  are  being  paid \nwith regard to Claimant’s compensable lower back injury sustained \non  6/28/11.  Since  the  agreed  order  was  entered,  Claimant  had  an \nadditional  surgery  with  Dr.  Johnson  and  was  given  an  additional \n1%  impairment  rating.  Both  TTD  and  PPD  were  paid  after  the \norder  was  entered.  Claimant  has  not  had  change  in  circumstance \n\nMichael – G106990 \n \n-3- \nsuch  to  warrant  an  increase  in  permanency  beyond  what  has \npreviously been paid.” \n \n Respondent No. 2’s contentions are as follows: \n \n“The  Trust  Fund  defers  to  litigation  on  the  extent  of  disability \nissue.  It  has  not  controverted  benefits.  The  Trust  Fund  waives  its \nappearance  at  the  next  hearing.  The  last  report  provided  to  the \nTrust  Fund  was  the  5/9/2019  report  of  Dr.  Danny  Silver.  The \nexhibits   to   be   introduced   by   the   Claimant   show   numerous \nadditional  reports  from  that  date  until  8/23/22.  The  Fund  asks  the \nClaimant to provide those documents at this time.” \n \n The  claimant  in  this  matter  is  a  51-year-old  female  who  sustained  a  compensable  injury \nto  her  lower  back  on  June  28,  2011,  while  employed  by  the  respondent.  The  claimant  first \nunderwent  surgical  intervention  for  her  compensable  low  back  injury  on  April  10,  2013,  at  the \nhands  of  Dr.  Arthur  Johnson.  Dr.  Johnson  performed  a  lumbar  fusion  on  the  claimant  at  that \ntime.  \n Dr.  Johnson  authored  a  letter  on  February  28,  2014,  regarding  the  claimant  reaching \nmaximum  medical  improvement  and  her  anatomical  impairment  rating.  The  body  of  that  letter \nfollows: \nRe: Linda G. Michael \nTo Whom It May Concern: \n \nDue to medical reasons, Linda G. Michael has been given a rating. \n \nThe above captioned patient has been under my care and has been \nreleased from Neurosurgery as of 02/28/2014. \n \nThis   patient   has   now   reached   his   [sic]   Maximum   Medical \nImprovement.   He   [sic]   was   given   a   permanent   impairment \ndisability   rating   according   to   the   4\nth\n   edition   of   the   AMA \nGuidelines of 14% impairment to the body as a whole. \n \nThis is within a reasonable degree of medical certainty. \n \n\nMichael – G106990 \n \n-4- \n On  September  2,  2014,  the  parties  entered  into  an  Agreed  Order  found  at  Claimant’s \nExhibit  1,  pages  1-3  and  Respondent’s  Exhibit  2,  pages  1-3.  In  part,  that  Order  determined  the \nclaimant  to  be  entitled  to  42%  in  wage  loss  disability  above  the  14%  permanent  partial \nimpairment rating that was accepted by the respondent.  \n The  Order  also  ended  the  claimant’s  right  to  additional  wage  loss;  however,  the  Order \nallowed  for  the  claimant  to  seek  permanent  total  disability  benefits  given  an  increase  in \npermanency. Following is paragraph 5 of that September 2, 2014, Order: \n“The parties jointly agree that payment as outlined above fully and \nfinally extinguishes any and all claims Claimant may have to wage \nloss disability benefits associated with the injury she suffered on or \nabout  6/28/11,  or  at  any  other  time  while  working  for  Booneville \nSchool District. However, if there is a change in circumstance such \nto warrant an increase in permanency, Claimant is not barred from \nseeking permanent total disability benefits.” \n \n On October 5, 2017, the claimant was seen by Dr. Johnson with complaints of low back \npain. Following is a portion of that progress note: \nChief Complaint \nPatient presents with \n*LOW BACK PAIN \nHas  lbp  and  bil,  hip  and  legs  with  numbness.  Any  prolonged \nactivity causes pain. Has had physical therapy and did not help. Dr. \nSilver gave her an injection. \n \nSubjective \nLinda  G.  Michael  is  a  45  y.o.  year-old  female  seen  status  post \nlumbar  spinal  fusion  L4-5,  L5-S1,  S1-S2.  A  diagnosis  of  Left-\nsided  low  back  pain  with  sciatica,  sciatica  laterality  unspecified \nwas also pertinent to the visit, she is status post TLIF L4-5, L5-S1, \nS1-S2  that  was  done  on  March  10,  2013.  She  continues  to  have \nchronic  low  back  pain  that  has  not  improved  much  since  her  last \nvisit.  She  had  a  repeat  CT  scan  performed  that  showed  that  the \npedicle  screw  on  the  right  in  the  S2  vertebral  body  was  fractured \nalmost  at  midshaft.  She  returns  today  to  discuss  whether  she \nshould  have  the  screw  removed.  She  has  the  stinging  type  pain  in \nher  lower  back  and  right  leg.  Her  pain  is  still  a  level  where  it  is \n\nMichael – G106990 \n \n-5- \nunbearable at times. She is not able to continue to do her activities \nof daily living on a regular basis. Any type of activity increases her \npain.   She   is   also   depressed   and   is   seeing   a   counselor   for \ndepression. Part of her depression is secondary to her chronic pain \nsyndrome.  She  is  afraid  to  come  off  of  pain  medication  because \nshe has been on them for so long. She  was sent for evaluation for \nspinal  cord  stimulator  trial  but  was  denied  because  she  did  not  fit \nthe  psychological  profile  back  is  most  likely  to  benefit  from  the \nimplant.  She  still  wants  to  have  the  hardware  removed  in  hopes \nthat  it  will  improve  her  pain.  She  was  informed  that  it  is  very \nunlikely  that  the  pain  will  improve  with  removal  of  the  hardware \nas she is already fused at all 3 levels. \n \n*** \nX-ray of the lumbar spine: \nThe  hardware  is  in  good  alignment  and  position  from  all  3  levels \nwith the screws at the inferior level been fractured bilaterally. \n \nOther Studies Reviewed: \nI have reviewed the MRI of the lumbar spine from Prime Medical \nImaging   which   shows   mild   disc   degeneration   at   the   L3   L4 \n(assuming lumbarization of the S1) level with no significant canal \nstenosis  or  neuroforaminal  stenosis.  No  stenosis,  disc  herniations \nor neural foraminal stenosis is evident at any of the fused levels of \nthe lumbar spine. \n \nAssessment: \n1.  Hardware  failure  of  the  anterior  column  of  spine,  fractured \nscrews at S1. \n2. Status post lumbar spinal fusion L4-5, L5-S1, S1-S2. \n \nPlan: \nI  have  discussed  the  treatment  options  which  I  believe  include \nsurgery. \nNo orders of the defined types were placed in this encounter. \n \nBased on that discussion we are going to proceed with: \nRemoval  of  hardware  L3-S1.  I’m  very  doubtful  that  this  will \nimprove the patient’s clinical pain syndrome. She failed to respond \nto  a  3  level  lumbar  fusion.  She  is  completely  fused  at  all  3  levels \naccording  to  CT  and  therefore  not  having  any  movement  around \nthe areas where the fractured screws are at S1.  \nNo orders of the defined types were placed in this encounter. \n \n\nMichael – G106990 \n \n-6- \nI  have  explained  the  surgery  to  the  patient,  removal  of  hardware \nL3-S1, along with the risk and benefits. \n \n The  claimant  underwent  surgical  hardware  removal  at  the  hands  of  Dr.  Johnson  on \nDecember  5,  2017.  On  January  31,  2018,  the  claimant  was  seen  by  Dr.  Johnson’s  APN,  Janet \nCanada. Following is a portion of the progress note from that encounter: \nChief Complaint: \nPatient presents with \n*Follow up \nShe  came  in  walking  with  guarded  gait,  using  a  quadcane.  C/o \nlumbar and right leg leg pain. She has her lumbar dressing on with \nsome skin excoriation on the left lateral aspect of the incision. Her \nwound vac was placed on Friday and came on Tuesday. \n \nSubjective: \nMs.  Michael  is  a  46  y.o.  female  s/p  hwr  at  L3-S1  Dr.  Johnson  on \n12/5/2017.  Postoperative  recovery  has  been  complicated  by  a \nwound  infection/wound  dehiscence  requiring  a  wound  vac.  She  is \nbeing treated by Mercy wound clinic. The first two wound cultures \nhad no growth. No antibiotics taken since 1/10/2018 per husband. I \nhave been reviewing scanned pictures of the wound in EMR since \nreferred  to  the  wound  clinic  and  appears  to  be  healing  well  by \nsecondary intention.  \n \n1/31/2018:  She  presents  to  the  clinic  for  her  scheduled  visit  with \nc/o increased low back, right leg pain. C/o left lateral low back and \nmidline low back pain. She reports, “do not feel good.” She reports \nfever  and  chills  x5  days.  Unable  to  report  febrile  temps  though.  I \nam told by pt, case manager and husband that the wound vac “was \napplied  improperly”  and  caused  excoriation  of  the  skin  left  of \nmidline    lumbar    open    wound.    The    wound    vac    has    been \ndiscontinued  at  this  time.  She  is  feeling  “depressed.”  She  has \nbursts of crying during this visit. Denies bowel or bladder changes. \nThe  wound  culture  sent  by  Ms.  Davenport  APN  wound  clinic  is \nPositive, see below. \n \n*** \nAssessment: \n1. Staphylococcus aureus infection. \n2. Surgical wound dehiscence, sequela. \n3.   Open   wound   of   back,   unspecified   laterality,   subsequent \nencounter. \n\nMichael – G106990 \n \n-7- \n \nPlan: \nDressing changed. \nHH needs to be notified to replace dressing tomorrow and not wait \nuntil fri. \nSent patient for labs: Sed, Crp and cbc. \nCleocin restarted until Culture Sensitivity results available; change \nas needed. \nMessage sent to J. Davenport, wound clinic apn about patient. \n \n On  May  29,  2018,  Dr.  Johnson  authored  a  letter  regarding  an  increase  in  the  claimant’s \nimpairment and maximum medical improvement. The body of that letter follows: \nThe above captioned patient has been under my care and has been \nreleased from Neurosurgery as of 5/23/2018. \nThis    patient    has    now    reached    her    Maximum    Medical \nImprovement. \nShe was given a permanent impairment disability rating according \nto the 4\nth\n edition of the AMA guidelines of 1% impairment for the \nhardware removal surgery that was done 12/5/2017. \n \nThis is within a reasonable degree of medical certainty. \n \n The  claimant  has  asked  the  Commission  to  determine  whether  she  is  entitled  to \npermanent total disability benefits. Given the September 2, 2014, Order, which is now the law of \nthis  case,  the  claimant  must  have “a  change  in  circumstance  such  to  warrant  an  increase  in \npermanency” in order for the claimant to seek permanent total disability benefits.  \n The broken surgical screws referenced in  Dr. Johnson’s October 5, 2017,  progress note, \nsurgical  intervention  to  remove  the  claimant’s  surgical  hardware  on  December  5,  2017,  by  Dr. \nJohnson,  and  Dr.  Johnson’s  May  29,  2018,  letter  in  which  he  increased  the  claimant’s \nimpairment by 1% merit “a change in circumstance such to warrant an increase in permanency.” \nGiven  this  change  in  circumstance  and  increase  in  permanency,  the  claimant  is  able  to  pursue \npermanent total disability benefits. The claimant has asked the Commission to determine if she is \npermanently  totally  disabled.  Pursuant  to  A.C.A.  §  11-9-519(e)(1),  in  order  to  prove  that  she  is \n\nMichael – G106990 \n \n-8- \npermanently totally disabled, the claimant must prove that she is unable to earn any meaningful \nwages in the same or other employment due to her compensable injury. \n The claimant certainly had significant physical difficulties prior to the September 2, 2014 \nOrder,   which   determined   she   had   42%   wage   loss   disability   above   her   14%   anatomical \nimpairment. On March 14, 2014, the claimant underwent a functional capacity evaluation at the \nFunctional  Testing  Centers,  Inc.  That  report  is  found  Respondents’  Exhibit  1,  pages  31-47. \nFollowing is a portion of that evaluation. \nRELIABILITY AND CONSISTENCY OF EFFORT \nThe results of this evaluation indicates that a reliable effort was put \nforth,  with  53  of  54  consistency  measures  within  expected  limits. \nAnalysis of the data collected during this evaluation indicates that \nshe  did  put  forth  consistent  effort.  She  produced  normal  and \nconsistent grip and pinch strength with each hand with C.V.’s that \nindicate minimal variance with repeated trial resting. \n \n*** \nFUNCTIONAL LIMITATIONS \nMs. Michael demonstrated limitations with material handling with \na  demonstrated  occasional  lift/carry  of  up  to  20  lbs.  Ms.  Michael \ndemonstrated  poor  tolerance  to  all  activities  that  required  her  to \nwork  below  knuckle  level  as  she  completed  Stooping/Bending, \nKneeling  and  Crouching  all  at  the  Occasional  level.  Ms.  Michael \nalso demonstrated climbing stairs and Reaching Overhead with the \nRUE at the Occasional level. She does require changes in postural \nposition  throughout  the  workday  and  benefits  from  changes  from \nstanding  to  sitting  and  vice  versa  at  will.  Ms.  Michael  performed \nall testing with while wearing her post-op back brace. \n \n At the hearing in this matter two witnesses were called, the  claimant and her husband of \n33  years,  Mr.  Phillip  Michael.  Mr.  Michael  gave  testimony  on  direct  examination  about  the \nclaimant’s activities after the first surgery in 2013, and how those activities changed as follows: \nQ So  after  the  first  surgery,  what  kinds  of  physical  activities \ndo  you  recall  you  and  your  wife  engaging  in?  That  would  have \nbeen in 2014, 2015. \n \n\nMichael – G106990 \n \n-9- \nA I  mean  that  was  a  long  time  back,  but  not  a  whole  bunch, \njust  to  be  honest.  I  mean  she  usually  stayed  at  home  most  of  the \ntime.  She  got  out  more  than  what  she  does.  We  would  go  to \nWalmart or Sam’s, you know. \n \nQ So did there come a time when whatever activities she was \nengaging in became more limited? \n \nA Yeah, I mean – \n \nQ What happened? \n \nA She got another bolt snapped in her back and I couldn’t get \nher to hardly do nothing then. A lot of times she just stood up and \nshe may fall. \n \nQ So then did she undergo a second surgery by Dr. Johnson? \n \nA Yes, sir. \n \nQ How did she do after that? \n \nA Her limitations just went downhill bad. I can’t get her to \nhardly do anything. \n \nQ Compared  to  her  physical  activities  after  the  first  surgery \nwith  her  physical  activities  after  the  second  surgery,  tell  us  how \nyou would compare those activities. \n \nA After the first one she would at least try to take a bath and \nclean  herself  up,  you  know,  at  least  every  other  day.  Now  I  am \nlucky to get her to take a bath every six days. Some days it goes 12 \ndays  before  she  took  a  bath.  It  is  just  hard  to  get  her  out  of  her \nchair to do anything. \n \nMr. Michael also gave direct examination testimony about the claimant’s daily activities \nas follows: \nQ Are you around her on a regular basis now? \n \nA I stay there with her constantly. \n \n\nMichael – G106990 \n \n-10- \nQ What is  a typical day for her? Don’t tell me what she tells \nyou, but I mean you are around her constantly. Just give us an idea \nof what a typical day is now. \n \nA She  will  wake  up  anywhere  between  7:30  and  9:00.  I  will \nget  up  and  I  will  try  to  fix  her  something  to  eat  because  she  is \nhungry. I bring her food to her. She will take her medicine and the \nnext  thing  I  know  she  is  asleep  again  in  her  chair.  She  may  wake \nup, you know, 11:30 or 12:00 ready for lunch. I mean it’s not every \nday, but most of the days that is the way it goes. \n \nAnd then if I get her to go anywhere, it is usually between 1:00 and \n5:00 if I can get her out of the house. And other than that, she may \ngo back to bed at 6 o’clock, but it’s sometimes between 6:00 and \n8:30 she goes back to bed and stays in bed until the next morning. \n \n Mr. Michael also gave testimony about the claimant falling and about his observations of \nher physical abilities after the 2017 surgery as follows: \nQ And  you  said  something  about  her  falling.  Was  she  rarely \nfalling  before  2005  [sic]?  The  surgery  was  in  2007  [sic].  He \nreleased  her  in  2014.  So  after  he  released  her  in  2014,  was  she \nfalling at that point? \n \nA No, sir. \n \nQ So at what point did she start falling? \n \nA I  would  say  whenever  the  second  screw  busted  around \n2016. \n \nQ And then he did the surgery in 2017? \n \nA Correct. \n \nQ So  after  the  surgery  in  2017,  did  she  ever  appear  to  be  as \nactive as she was before 2017? \n \nA No, sir. It just got worse. \n \nQ And when you say got worse, what do you mean by that? \n \nA She just don’t do nothing. I mean to get her to do anything, \nI mean even to take a bath is— \n\nMichael – G106990 \n \n-11- \n \nQ Well, now, you said she doesn’t do anything. I mean she \nhas got to do something in order to get through the day. I mean she \nis here today, so she obviously does some walking and stuff, so be \nmore specific when you  say – when you  are trying to tell us what \ngoes on. \n \nA She will get up to go to the restroom. I have seen her make \nher  a  sandwich  or  something  that  was  pretty  simple  to  eat.  I  have \nseen  her  put  maybe  a  plate  in  the  dishwasher.  She  may  throw \nsomething in the washing machine if she ain’t got to bend over in a \nbasket to get it out. \n \nQ Have  you  seen  her  lift  anything  that  appeared  to  weigh \nmore than 10 pounds since 2017? \n \nA No, sir. \n \n Mr.  Michael  also  testified  about  traveling  with  the  claimant  to  see  family  in  Texas.  He \nstated that it was basically a 330-mile trip that takes them seven to seven- and one-half hours to \nmake due to the number of breaks the claimant needs due to sitting in the vehicle. Mr. Michael \ndid mention that in a time of emergency the trip could be made with the claimant in five to five- \nand one-half hours. \n The  claimant  was  called  on  direct  examination  and  gave  testimony  about  problems  she \nhad after her first surgery in 2013 and why she agreed to a second surgery in 2017 as follows: \nQ Ms.  Michael,  do  you  remember  the  first  surgery  that  Dr. \nJohnson performed on you? \n \nA Yes. \n \nQ Did  you  have  any  problems  during  the  recovery  from  that \nsurgery? \n \nA Yes, sir. \n \nQ  What? \n \nA I got an infection. \n\nMichael – G106990 \n \n-12- \n \nQ Would  you  have  agreed  to  a  second  surgery  if  you  didn’t \nfeel like you really needed it? \n \nA No, I would not have. \n \nQ So  what  caused  you  to  agree  to  the  second  surgery  that \nhappened in December of 2017? \n \nA Can you repeat that. \n \nQ Why  did  you  agree  to  have  the  second  surgery  that  Dr. \nJohnson did on your back in 2017? \n \nA Because I was falling. Those screws broke. \n \nQ Do  you  remember how  long  before  the  December  ’17 \nsurgery you started falling? \n \nA No, sir. \n \nQ  Okay. So whatever the medical records show, you are good \nwith that; is that right? \n \nA Yes, sir. \n \nQ So did the December ’17 surgery fix you? \n \nA No, sir. \n \nQ So what kind of problems are you still having as far as your \nback is concerned? \n \nA Sometimes  I  am  weak  in  my  legs  and  in  my  back.  I  fall \nsometimes. \n \nQ Now, you are on some kind of a walker today. \n \nA Yes, sir. \n \nQ Why are you using that? \n \nA Because I am weak in my back and my legs and I don’t \nwant to fall. \n \n\nMichael – G106990 \n \n-13- \nQ Now, you don’t use it all the time, do you? \n \nA No, sir. I use a cane sometimes. \n \nQ Okay.   But   you   had   to   come   from   your   car   into   the \ncourthouse and up the hallway and all that stuff today? \n \nA Yes, sir. \n \n The claimant was also questioned about her typical day on direct examination as follows: \nQ Tell  me  what  a  typical  day  is  for  you,  Ms.  Michael.  What \ntime do you get up? \n \nA It varies. Sometimes I get up early and then  I will go back \nto bed. I will take my medicine and go to bed. Sometimes I get up \nbetween 7:00 and 8:00. It just depends. \n \nQ And then what do you do? \n \nA I take my medicine. I go in there and sit down in the chair. I \nwill  get  me  probably  a  little  Twinkie  or  something,  a  cupcake  or \nsomething until my husband gets up and fixes breakfast. And then \nsometimes I go back to bed. I will go to the restroom or something. \n \nQ Do you know why you spend so much time laying down? \n \nA Yeah, I am depressed and I hurt. \n \n On cross examination the claimant was asked about her current out-of-home activities as \nfollows: \nQ Okay. All right. You told me in your recent deposition that \nif  your  husband  goes  to  the  grocery  store  or  Walmart,  you  try  to \ngo; is that right? \n \nA Yes, ma’am. \n \nQ And  that  you  do  that  maybe  four  times  a  week;  is  that \ncorrect? \n \nA Yes, ma’am. I just ride with him wherever he goes. I don’t \nknow how many exact times. \n \n\nMichael – G106990 \n \n-14- \nQ Okay. And you also told us in the deposition that you guys \ngo to the casino sometimes; is that right? \n \nA Yes, ma’am. \n \nQ Choctaw and one other in the local area? \n \nA Yes. \n \nQ You told me that you usually go three or four times a week; \nis that right? \n \nA Yes, ma’am. \n \nQ Usually  if  you  are  hitting,  you  would  stay  three  to  four \nhours, but you have stayed five hours before if you are getting a lot \nof money, is that right? \n \nA Yes, ma’am. \n \nQ Sometimes it’s shorter; is that right? \n \nA Yes, ma’am. \n \nQ You  also  told  me  you  stop  at  garage  sales  every  once  in  a \nwhile; is that correct? \n \nA Yes, ma’am. \n \nQ And  at  times  your  eight-year-old  granddaughter  comes  to \nvisit you guys, is that right? \n \nA Yes, ma’am. \n \nQ Is that the one that lives down in Texas? \n \nA Yes, ma’am. \n \nQ Okay.  And  your  husband  was  telling  us  earlier  that  you \nhave gone down there to visit your family; is that right? \n \nA Yes. \n \nQ At  the  time  of  your  deposition,  you  told  us  that  you  had \ngone down there to visit in August of ’21 when your daughter got \n\nMichael – G106990 \n \n-15- \nmarried. You went again at Christmas and two other times in ’22; \nis that correct? \n \nA I think that’s all. \n \nQ You think what? I’m sorry. \n \nA I think that is all. \n \nQ Okay.   And   one   of   the   times   last   year   was   your \ngranddaughter’s birthday in July and you  said  you  guys  went  to \nWalmart and Claire’s to get her something for her birthday; is that \nright? \n \nA Yes. \n \nQ You stayed about four or five days that trip? \n \nA Yes. \n \n On  direct  examination  the  claimant  was  asked  about  her  ability  to  work  including  her \nformer employment as a school janitor as follows: \nQ How  long  did  you  work  for  the  school  system  before  you \ngot hurt? \n \nA Eighteen and a half years, but they only got seventeen and a \nhalf years down. \n \nQ And what happened to your job there? \n \nA I don’t understand what you are asking me. \n \nQ Well, you are not working there anymore, are you? \n \nA No. \n \nQ There  is  a  document  in  the  exhibits  that  I  have  submitted \nthat says that the school district decided that you weren’t able to \nwork there anymore. \n \nA Yes. They fired me. \n \nQ After you got hurt? \n\nMichael – G106990 \n \n-16- \n \nA Yes. \n \nQ Do you know of any job that you could do for four hours a \nday in your current physical condition? \n \nA No. \n \nQ Do you know of any job that you could do for two hours a \nday in your current physical condition? \n \nA No. Cannot do it right. \n \nQ If it wasn’t for your back, would you have continued to \nwork for the school district? \n \nA Yes, sir. \n \nQ Did you like that job? \n \nA Yes, sir. \n \nQ  Do you wish you could work now? \n \nA Yes, sir. \n \n A  document  is  found  at  Claimant’s  Exhibit  3,  page  1,  which  is  a  letter  to  the  claimant \nfrom  the  superintendent  of  the  respondent’s  school  district.  The  letter,  in  part,  informs  the \nclaimant  that  the  superintendent  will  be  recommending  her  termination  from  employment  and \ngives the following reason:  \n“You have been absent from work due to a workers’ compensation \ninjury. We are advised that you have made the maximum possible \nmedical  recovery  from  your  injury,  but  due  to  your  permanent \nmedical   restrictions,   you   are   unable   to   perform   the   essential \nfunctions  of  the  job  of  janitor,  or  any  other  position  that  you  are \nqualified to fill.” \n \n On   cross   examination   the   claimant   was   questioned   about   the   letter   from   the \nsuperintendent and her short return to work in January of 2013, as follows: \n\nMichael – G106990 \n \n-17- \nQ You went back to work  for a short time. This was January \n23\nrd\n of ’13 when Dr. Silver was wanting you to try working a few \nhours a day. Do you remember that? \n \nA Maybe. \n \nQ Okay. \n \nA Are  you  talking  about  in  between  like  when  I  was  getting \nphysical therapy a little bit and then – yes. \n \nQ That  could  be.  And  at  that  time  you  had  restrictions  of  no \nbending,  no  stooping,  crawling,  climbing,  twisting,  kneeling  and \nyou  were  to  take  breaks  to  elevate  your  feet  and  stretch  at  will. \nDoes that sound right? \n \nA Yes, ma’am. That’s true. \n \nQ And  as  we  discussed  today,  the  school  district  couldn’t \naccommodate those permanent restrictions; could they? \n \nA No, ma’am. That’s why I laid on the couch sometimes. \n \nQ Your  attorney  introduced  a  letter  from  the  superintendent \ndated June 4\nth\n of ’14. That is when they had to let you go because \nthey couldn’t  accommodate  those  permanent  restrictions.  You \nunderstand that; correct? \n \nA (The witness nods her head up and down.) \n \nQ Is that a “yes”? \n \nA Yes, ma’am. I am sorry. \n \nQ And  that  was  done  before  we  entered  the  agreed  order \nwhere  you  received  a  large  sum of money from workers’ comp. \nDoes that sound correct? \n \nA Yes, ma’am. \n \n This permanent total disability case is different than most in that the parties entered into \nan agreement which became an Order on September 2, 2014, making it the law of this case. That \nOrder  set  the  claimant’s  wage  loss  disability  at  42%  and  set  the  claimant’s  permanent  partial \n\nMichael – G106990 \n \n-18- \nimpairment  rating  at  14%.  That  same  Order  extinguished  the  claimant’s  ability  to  have  any \nadditional  increase  in  wage  loss  disability  but  allowed  for  the  claimant  to  seek  permanent  total \ndisability “if  there  is  a  change  in  circumstance  such  to  warrant  an  increase  in  permanency.”  At \nthe time of the September 2, 2014 Order, the claimant’s permanent partial impairment rating was \n14%. By stipulation, the respondent has agreed that the claimant’s permanent partial impairment \nrating has increased by 1% from 14% to 15% as seen in Stipulation #7 of the Pre-hearing Order \nfound  at  Commission  Exhibit  1,  page  2.  Thus,  the  claimant’s  permanency  has  increased, \nallowing  the  claimant  to  have  the  Commission  determine  whether  she  is  entitled  to  permanent \ntotal disability benefits. \n Whether the claimant is permanently totally disabled must be looked at in the totality of \nthe  testimony  and  evidence  before  the  Commission,  not  just the  change  between  the  claimant’s \ncondition  before  and  after  the September  2,  2014  Order.  It  is  clear  that  the  claimant  was  not \npermanently totally disabled at that time. The central question is whether she is now permanently \ntotally disabled after considering everything both before and after the September 2, 2014 Order. \n The  claimant  has  a  ninth-grade  level  education  and  participated  in  special  education \nclasses when she was in  enrolled in school. A progress report dated July  10,  2014, authored by \nTanya  Rutherford  Owen,  Ph.D.  at  Rehabilitation  Services  found  at  Claimant’s  Exhibit  3,  pages \n3-7 states, “she took a GED test and scored at the ‘third-grade level’ and does not plan to enroll \nin the GED class at this time.” \n The  claimant’s  work  history  includes  working  for  a  year  at  Kentucky  Fried  Chicken  in \nhigh school, working as a housekeeper at a nursing home, working in a chicken processing plant, \nand  for  the  respondent  as  a  school  janitor  or  custodian.  The  claimant  credibly  testified  that  she \ncould no longer perform those jobs. I believe the claimant’s testimony to be credible. I base that \n\nMichael – G106990 \n \n-19- \nopinion  on  her  demeanor  at  the  in-person  hearing,  the  compatibility  of  her  testimony  with \nmedical records, and a high level of  reliability and consistency of effort given at her March 14, \n2014, functional capacity evaluation. \n In  addition  to  all  of  the  significant  physical  difficulties  the  claimant  had  prior  to  the \nSeptember  2,  2014  Order,  she  had  hardware  failure  that  caused  her  to  become  unsteady  on  her \nfeet  and  fall  often.  The  claimant  did  appear  to  sincerely  have  difficulty  ambulating  at  the  in-\nperson  hearing  in  this  matter.  The  claimant’s  condition  has  substantially  worsened  since  the \nSeptember  2,  2014  Order.  I  find  that  in  the  totality  of  the  testimony  and  evidence  before  the \nCommission,  that  the  claimant  is  able  to  prove  that  she  is  permanently  totally  disabled.  The \nclaimant  has  proven  by  a  preponderance  of  the evidence  that  she  is  unable  to  earn  any \nmeaningful wages in the same or other employment due to her compensable low back injury. \n Given  the  September  2,  2014  Order,  the  claimant  was  not  able  to  seek  permanent  total \ndisability benefits until there had been “a change in circumstance such to warrant an increase in \npermanency.”  That  increase  in  permanency  occurred  on  May  29,  2018,  when  Dr.  Johnson \nincreased  the  claimant’s  impairment  rating  by  1%.  Given  the  claimant’s  inability  to  claim \npermanent  total  disability  prior  to  this  increase  in  permanency,  I  find  that  permanent  total \ndisability  benefits  shall  begin  as  of  May  29,  2018,  the  date  of  the  increase  of  the  claimant’s \npermanency. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses  and  to  observe  their  demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n \n\nMichael – G106990 \n \n-20- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nNovember 14, 2022, and contained in a Pre-hearing Order filed November 15, 2022, are hereby \naccepted as fact. \n 2.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \npermanent total disability benefits. \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  her  attorney  is \nentitled to an attorney’s fee in this matter. \n ORDER \n Respondents  No.  1  and  Respondent  No.  2  shall  pay  the  claimant  permanent  total \ndisability  benefits  as  set  forth  in  the  Arkansas  Workers’  Compensation  Act  and  at  the  rate  set \nforth  in  the  Pre-hearing  Order  filed  November  15,  2022,  more  specifically  Stipulation  #4. \nPermanent total disability benefits shall begin as of May 29, 2018. \n Respondent No. 1 shall pay to the claimant’s attorney the maximum statutory attorney’s \nfee  on  the  benefits  awarded  herein,  with  one-half  of  said  attorney’s  fee  to  be  paid  by  the \nrespondent in addition to such benefits and one-half of said attorney’s fee to be withheld by the \nrespondent from such benefits pursuant to Ark. Code Ann. § 11-9-715 (Repl. 2012). \n All sums herein accrued are payable in a lump sum and without discount and shall earn \ninterest at the legal rate until paid. \n IT IS SO ORDERED. \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G106990 LINDA MICHAEL, Employee CLAIMANT BOONEVILLE SCHOOL DISTRICT, Employer RESPONDENT NO. 1 ARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT NO. 1 DEATH & PERMANENT & TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED APRIL 25, 2023 Hearing before ...","fetched_at":"2026-05-19T23:08:47.918Z","links":{"html":"/opinions/alj-G106990-2023-04-25","pdf":"https://labor.arkansas.gov/wp-content/uploads/MICHAEL_LINDA_G106990_20230425.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}