{"id":"alj-G305023-2024-07-16","awcc_number":"G305023","decision_date":"2024-07-16","opinion_type":"alj","claimant_name":"John Boggs","employer_name":null,"title":"BOGGS VS. ARKANSAS DEPT. OF TRANSPORTATIONAWCC# G305023July 16, 2024","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["lumbar","back","cervical","neck","shoulder"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/BOGGS_JOHN_G305023_20240716.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOGGS_JOHN_G305023_20240716.pdf","text_length":18152,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G305023 \n \nJOHN BOGGS, Employee                                                                              CLAIMANT \n \nARKANSAS DEPT. OF TRANSPORTATION, Employer                         RESPONDENT                                                                      \n \nPUBLIC EMPLOYEE CLAIMS, Carrier                                                     RESPONDENT                                              \n \n \n OPINION FILED JULY 16, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents   represented   by CHARLES   H.   MCLEMORE,   Attorney, Little   Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n  \n On June 17, 2024, the above captioned claim came on for hearing at Fort Smith, \nArkansas.  A pre-hearing conference was conducted on April 17, 2024, and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #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 the \nwithin claim. \n 2.   The claimant was earning an average weekly wage of $803.74 which would \nentitle him to compensation at the weekly rates of $536.00 for total disability benefits and \n$402.00 for permanent partial disability benefits. \n 3.   Claimant reached maximum medical improvement on March 4, 2024. \n\nBoggs – G305023 \n 2 \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Extent of claimant’s impairment rating. \n2. Claimant’s entitlement to benefits for wage loss resulting from his compensable  \nInjury. \n3.   Attorney’s fee. \nAt the time of the hearing claimant indicated that the extent of his impairment rating  \nis no longer an issue.  Instead, the parties have agreed to stipulate that claimant’s \npermanent impairment rating equals 13% to the body as a whole. \n The claimant contends that he is entitled to benefits for wage loss resulting from \nhis  compensable  injury.    Claimant  also  contends  that  he  is  entitled  to  a  controverted \nattorney fee on any unpaid indemnity benefits. \nThe respondents contend that this claim has been accepted as compensable and \nthat the claimant has been provided all benefits to which he is entitled.  After Dr. Frank \nTomecek recommended fusion surgery from L3 to S1, which respondent had authorized \nbut  the  claimant  did  not  want,  the  claimant  used  his  Change  of  Physician  to  see  Dr. \nBlankenship.    Dr.  Blankenship  performed  surgery  on  April  18, 2023,  which  respondent \nprovided the claimant.  Dr. Blankenship released the claimant at MMI and on March 4, \n2024, wrote that the claimant had a 13% permanent impairment rating.  Dr. Blankenship \nalso  wrote  that  the  claimant  could  return  to  gainful  employment  with  work  restrictions.  \nRespondent  has  accepted  the  claimant’s  13%  impairment  rating  and  is  paying \nappropriate permanent partial disability benefits to the claimant.  The claimant performed \nunreliably  at  an  FCE  on  March  27,  2024  in  the  sedentary  classification  with  24  of  46 \nconsistency measures.  The claimant is still an employee of the respondent employer.   \n\nBoggs – G305023 \n \n3 \n \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non April 17, 2024, and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    The parties’ stipulation that claimant’s permanent impairment rating equals \n13% to the body as a whole is also hereby accepted as fact. \n 3.    Claimant has met his burden of proving by a preponderance of the evidence \nthat he has suffered a loss in wage earning capacity in an amount equal to 35% to the \nbody as a whole. \n 4.   Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n \n FACTUAL BACKGROUND \n Claimant is a 53-year-old man who began working for respondent approximately \nfifteen years ago.  He suffered an admittedly compensable injury to his lumbar spine while \nfixing a flat tire on a backhoe on December 19, 2021.  Following his injury, claimant came \nunder the care of Dr. Arthur Johnson, neurosurgeon, who recommended surgery at the \nL4-5 and L5-S1 levels.  Claimant requested a second opinion and was seen by Dr. Barry \n\nBoggs – G305023 \n \n4 \n \nKatz,  neurosurgeon,  who  also  recommended  surgery.    Claimant  chose  not  to  undergo \nthe  recommended  surgery,  but  instead  returned  to  work  for  respondent  in  a  job  that \nallowed more supervisory work.  During this time, claimant continued to receive treatment \nin the form of pain management which primarily consisted of pain medication. \n When his back condition progressively worsened, claimant attempted to return to \nsee  Dr.  Katz,  but  Dr.  Katz  had  relocated  so  claimant  was  evaluated  by  Dr.  Tomecek, \nneurosurgeon.  Dr. Tomecek ordered an updated MRI scan and when he saw claimant \non  June  14,  2021,  he recommended  a bilateral  discectomy  and  fusion  from  L3  to  the \nsacrum.  He also discussed other options; including, stem cell injections. \n Based on claimant’s response to epidural steroid injections, Dr. Tomecek indicated \nin a report dated August 4, 2021 that he believed that claimant was still a candidate for \nstem cell injections.  Following a peer review, respondent authorized surgery but denied \napproval for the stem cell injections. \n Claimant  subsequently  requested  a  hearing  on  his  entitlement  to  the  stem  cell \ninjections recommended by Dr. Tomecek.  A  hearing on that issue was held on November \n22, 2021, and an opinion was filed December 17, 2021 finding that the stem cell injections \nwere reasonable and necessary.  That opinion was appealed by the respondent to the \nFull Commission. \n While  the  case  was  on  appeal,  respondent  filed  two  motions  to  submit  newly-\ndiscovered evidence; specifically, medical reports from Dr. Tomecek dated March 3, 2022 \nand April 13, 2022.  In the March 3, 2022 report,  Dr. Tomecek indicated that he no longer \nbelieved that the stem cell injections would benefit claimant’s condition and in the report \nof April 13, 2022 indicated that the injections would benefit his condition.  Based on the \n\nBoggs – G305023 \n \n5 \n \ninconsistency of Dr. Tomecek’s opinion, the Full Commission in an order filed May 13, \n2022  granted  the  respondent’s  motion  to  introduce  newly-discovered  evidence  and \nremanded the claim for additional proceedings.  On remand, claimant filed a motion to \ndismiss withdrawing his request for stem cell injections based on Dr. Tomecek’s opinion.  \nThis motion was granted by order filed July 11, 2022. \n Since that time claimant has filed for and received a change of physician request \nto Dr. Blankenship.  Claimant began treating with Dr. Blankenship on February 20, 2023, \nand  Dr.  Blankenship  agreed  that  claimant  was  in  need  of  surgery  but  not  the  one \npreviously  recommended  by  Dr.  Tomecek.    In  his  report  of  February  20,  2023,  Dr. \nBlankenship stated: \n  Dr. Tomacek had offered him a multilevel arthrodesis from \n  a posterior approach with pedicular fixation.  I told him that \n  is how I did the surgery 20 years ago.  We have newer and \n  better ways of accomplishing what needs to be done.  I have \n  offered him an anterior lumbar interbody arthrodesis and L5- \n  S1 with lateral interbody arthrodeses at L3-L4 and L4-L5.  He \n  would then undergone [sic] posterior stabilization with unilateral \n  cortical screw placement on the right with an extreme lateral \n  decompression at L5-S1 on the right. \n \n \n Dr.  Blankenship  performed  the  surgery  on  April  18,  2023.    Since  this  surgery, \nclaimant has continued to treat with Dr. Blankenship for continued low back pain.  He has \nalso undergone epidural steroid injections by Dr. Cannon which failed to provide any relief \nand he also underwent physical therapy. \n Although  claimant  continued  to  have  low  back  complaints,  Dr.  Blankenship  in  a \nreport  dated  March  4,  2024,  stated  that  claimant  had  reached  maximum  medical \n\nBoggs – G305023 \n \n6 \n \nimprovement and that he had a 13% impairment rating to the body as a whole as a result \nof his compensable low back injury. \n Claimant  has  filed  this  claim  contending  that  he  is  entitled  to  temporary  total \ndisability  benefits  for  loss  in  wage  earning  capacity  in  excess  of  his  13%  impairment \nrating. \n \nADJUDICATION \n Claimant contends that he is entitled to benefits for wage loss resulting from his \ncompensable injury.  Wage loss is the extent to which a compensable injury has affected \na claimant’s ability to earn a livelihood.  The Commission is charged with the duty of \ndetermining the amount of disability.  Cross v. Crawford County Memorial Hosp., 54 Ark. \nApp. 130, 923 S.W. 2d 886 (1996).  In determining wage loss disability, the Commission \nmay take into consideration various factors.  These factors include the claimant’s age, \neducation,  work  experience,  medical  evidence,  and  any  other  matters  which may  be \nreasonably be expected to affect claimant’s future earning power.  Other matters include \nmotivation,  post-injury  income,  credibility,  demeanor,  and  a  multitude  of  other  factors.  \nA.C.A.  §11-9-522; Glass  v.  Edens,  233  Ark.  786,  346  S.W.  2d  685  (1961); City  of \nFayetteville v. Guess, 10 Ark. App. 313, 663 S.W. 2d 946 (1984); and Curry v. Franklin \nElectric, 32 Ark. App. 168, 798 S.W. 2d 130 (1990). \n Claimant is 53 years old and according to the functional capacities evaluation he \nobtained his GED.  Claimant testified that he began working for respondent approximately \nfifteen  years  ago.    At  the  time  of  his  injury  in  2011  he  was  a  finish  grade  operator.  \nClaimant testified that while finish grade operator was his title, he actually ran a crew of \n\nBoggs – G305023 \n \n7 \n \nabout ten people.  Per the parties stipulation, claimant earned an average weekly wage \nof $803.74 at that job.   \n At  some  point after his  injury,  claimant  was returned  to  work  for  respondent  but \ndue to his physical limitations was unable to return to his prior job.  Instead, claimant was \nplaced in a supervisory job where he was earning $31.58 per hour, working 40 hours per \nweek. \n After claimant’s surgery by Dr. Blankenship, respondent determined that based on \nlimitations  placed  on  claimant  by  Dr.  Blankenship  that  claimant  could  not  return  to  his \nsupervisory job.  Instead, claimant has been placed in a clerical/data entry position that \nallows him to sit at a desk, using a computer.  Claimant works at this job five hours a day, \nfive days a week, and is paid $22.30 an hour.   \n Claimant did not testify about any of his work experience prior to beginning work \nfor the respondent. \n Claimant  testified  that  his  medications  include  Oxycodone,  Acetaminophen, \nEtodolac,  and  Cycobenzapar.    He  testified  that  some  of  the  medications  cause \nconstipation;  make  him  tired  and  groggy;  and  cause  difficulty  concentrating.    He  also \nnotes that his pain causes him difficulty while trying to sleep.  It is claimant’s testimony \nthat he has missed some work in his clerical position due to pain caused by his injury. \n I  also  note  that  claimant  has  undergone  surgery  on  his  cervical  spine  by  Dr. \nJohnson; however, his neck condition is not a part of his workers’ compensation claim. \n Following his surgery claimant was referred for a functional capacities evaluation \nwhich was performed on March 27, 2024.  Claimant testified that he gave his best effort \nduring the evaluation but states that on the day of the evaluation he was having “bad pain, \n\nBoggs – G305023 \n \n8 \n \nsevere pain.”  Claimant also attempted to discredit the FCE report by contending that the \nevaluator was distracted during the evaluation due to a personal situation.  I do not find \nany  credible  evidence  that  the  FCE  is  invalid  or  unworthy  of  belief  due  to  any  alleged \ndistractions on the part of the evaluator.  The evaluation report contains findings based \non claimant’s effort during the testing. \n The  FCE  report  indicates  that  the  evaluation  was  unreliable  due  to  inconsistent \neffort  on  behalf  of  the  claimant.    The  report  indicates  that  there  were  only  24  of  46 \nconsistency  measures  within  expected  limits.    One  such  example of  inconsistent  effort \ntesting involves Bi-Manual Lifting - Floor to Knuckle: \n  Mr. Boggs demonstrated that he was unable to left the \n  empty box off of the floor using both arms.  He was then \n  offered a different weight.  He proceeded to complete all \n  lifts of the second weight while using only his RUE.  The \n  second weight weighed the same as the empty box.  This \n  is not indicative of reliable effort. \n \n \n The evaluation determined that claimant demonstrated the ability to work in at least \nthe sedentary classification of work over the course of a normal eight-hour work day.  It \nalso noted that due to the unreliable effort, claimant’s abilities could be higher.  The report \nindicated that claimant demonstrated the ability to occasionally lift/carry up to 15 pounds \nand occasionally lift up to 5 pounds with his right upper extremity and left upper extremity \nwhen lifting from knuckle to shoulder level.   \n Following the functional capacities evaluation, Dr. Blankenship completed a form \nsetting out his own restrictions for the claimant.  In some respects, his limitations were \nless restrictive than the FCE.  While the FCE had lifting restrictions of 5-15 pounds, Dr. \nBlankenship  indicated  that  claimant  could  lift  15-20  pounds  (Floor  to  Waist,  Waist  to \n\nBoggs – G305023 \n \n9 \n \nShoulder,  and  Shoulder  to  Overhead)  and  that  he  could  carry  25-30  pounds.    He  also \nindicated that claimant could frequently sit/walk; sit; data entry/typing; simple grasping; \nsquat; kneel; climb; reach; operate foot controls; operate hand controls; and drive.  He \nindicated  that  claimant  could  occasionally  bend,  twist,  and  operate  heavy  equipment.  \nClaimant could not push and pull or weed eat.  Dr. Blankenship indicated that claimant \nshould not lift more than 15 or 20 pounds; that he should not engage in prolonged bending \nor  stooping;  and  that  he  should  not  constantly  carry  more  than  25-30  pounds.   Dr. \nBlankenship  did  not  indicate  that  claimant  was  capable  of  performing  any  activity \nconstantly. \n The form completed for respondent by Dr. Blankenship indicates that for purposes \nof assigning restrictions that Occasional is defined as up to 2.6 hours of the day; Frequent \nis up to 5.3 hours of the day; and Constant as 5.3 hours or more.  Based on the fact that \nDr.  Blankenship did  not  indicate  that  claimant  could do anything  “constantly”,  but a \nnumber of things “frequently”, respondent determined that claimant was only capable of \nworking five hours per day and has assigned him to a computer data entry job for five \nhours per day, five days a week.  Claimant has acknowledged that he was informed that \nhe could alternate between sitting and standing in the performance of this data entry job. \n In  summary,  claimant has experienced  some  loss  in  wage  earning  capacity.   At \nsome point he returned to work for respondent and was placed in a supervisory position \nworking eight hours a day, five days per week, and earning $31.58 per hour.  Currently, \nclaimant is working for respondent performing a data entry job working five hours a day, \nfive days a week, at a rate of $22.30 per hour.  While claimant testified that he does not \nfeel like he can do any job at the present, his testimony is not supported by the restrictions \n\nBoggs – G305023 \n \n10 \n \nplaced  on  him  by  Dr.  Blankenship.    According  to  the  limitations  assigned  by  Dr. \nBlankenship, claimant is not limited to a sedentary-type job.  However, he is limited in the \nnumber of hours he is capable of performing work within his limitations.  Finally, I note \nthat according to the FCE report, claimant gave an unreliable effort during the evaluation. \n Based  upon  the  foregoing  wage  loss  factors,  I  find  that  claimant  has  suffered  a \nloss in wage earning capacity in an amount equal to 35% to the body as a whole. \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe has suffered a loss in wage earning capacity in an amount equal to 35% to the body \nas  a  whole.    Respondent  has  controverted  claimant’s  entitlement  to  payment  of \npermanent partial disability benefits in an amount equal to 35% based upon this loss in \nwage earning capacity. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable  to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby the claimant.    \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $637.45. \n All sums herein accrued are payable in a lump sum and without discount. \n \n \n\nBoggs – G305023 \n \n11 \n \n IT IS SO ORDERED. \n \n      ________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G305023 JOHN BOGGS, Employee CLAIMANT ARKANSAS DEPT. OF TRANSPORTATION, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS, Carrier RESPONDENT OPINION FILED JULY 16, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Ar...","fetched_at":"2026-05-19T22:51:22.568Z","links":{"html":"/opinions/alj-G305023-2024-07-16","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/BOGGS_JOHN_G305023_20240716.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}