{"id":"alj-G306938-2025-02-18","awcc_number":"G306938","decision_date":"2025-02-18","opinion_type":"alj","claimant_name":"Victoria Harris-Hardy","employer_name":"Sebastian County Judge","title":"HARRIS-HARDY VS. SEBASTIAN COUNTY JUDGE AWCC# G306938 & G905668 February 18, 2025","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["knee","back","lumbar","hip","ankle"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/HARRIS-HARDY_VICTORIA_G905668-G306938_20250218.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HARRIS-HARDY_VICTORIA_G905668-G306938_20250218.pdf","text_length":30951,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G306938 & G905668 \n \nVICTORIA HARRIS-HARDY, Employee CLAIMANT \n \nSEBASTIAN COUNTY JUDGE, Employer RESPONDENT \n \nAAC RISK MANAGEMENT SERVICES, Carrier RESPONDENT \n \n OPINION FILED FEBRUARY 18, 2025 \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 represented by MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On November 21, 2024, the above captioned claim came on for a hearing at Fort Smith, \nArkansas.      A  pre-hearing  conference  was  conducted  on October  14,  2024,  and  a  Pre-hearing \nOrder  was  filed  on October  15,  2024.      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  August \n22, 2023, and on July 31, 2019. \n 3. The claimant sustained a compensable injury to her right knee on or about August 22, \n2013. \n 4. The claimant sustained a compensable injury to her back on or about July 31, 2019. \n\nHarris-Hardy – G306938 & G905668 \n \n-2- \n 5. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $384.00  for  temporary  total  disability  benefits  and  $288.00  for  permanent  partial \ndisability benefits. \n 6. All prior opinions are res judicata. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant is entitled to additional medical treatment for her compensable back \ninjury in the form of surgery as recommended by Dr. James Blankenship. \n 2. Whether Claimant is entitled to temporary total disability benefits from September 23, \n2024, to a date yet to be determined. \n 3. Whether Claimant’s attorney is entitled to an attorney’s fee. \n The claimant's contentions are as follows: \n“a.  The  Claimant  contends  that  her  authorized  treating  physician, \nDr.   James   Blankenship,   is   recommending   surgery   and   the \nrespondents  have  refused  to  authorize  said  surgery.  It  has  already \nbeen  determined  that  the  claimant  sustained  a  compensable  injury \nto her lumbar spine; therefore, the basis for the respondents denial \nis unknown. \n \nb.  The  Claimant  contends  that  she  will  be  entitled  to  temporary \ntotal disability benefits during any period of time during which she \nis  undergoing  treatment  by  Dr.  Blankenship  and  the  respondents \nare unable or unwilling to provide work within restrictions that Dr. \nBlankenship places on her while she is recovering from the effects \nof her injury. \n \nc.  The  Claimant  contends  that  her  attorney  is  entitled  to  an \nattorney’s fee since her back claim has already been controverted \nand   was   the   subject   of   a   prior   hearing   that   resulted   in   a \ndetermination that she sustained a compensable back injury.” \n \n The respondents’ contentions are as follows: \n“Surgery  by  Dr.  Blankenship  is  not  reasonable  or  necessary  or \nrelated to the 7-31-19 accident. Fortunately, the claimant had prior \n\nHarris-Hardy – G306938 & G905668 \n \n-3- \nMRI’s in 2017 and 2019 that showed only minimal disc bulging at \nL4-5. The latest MRI shows a new condition unrelated to the 2019 \naccident or a condition that is the natural process of aging and for \nwhich surgery has been proposed.” \n \n The  claimant  in  this  matter  is  a 58-year-old  female who  sustained  a  compensable  injury \nto  her  right  knee  on  August  22,  2013.  The  claimant  also  sustained  a  compensable  injury  to  her \nback  on  July  31,  2019.  This  administrative  law  judge  issued  an Opinion  on  May  6,  2020, \nregarding the compensability of the claimant’s July 31, 2019, back injury and her entitlement to \nmedical treatment. Following are the Findings of Fact and Conclusions of Law that have become \nthe law of this case: \n1. The  stipulations  agreed  to  by  the  parties  at  the  pre-\nhearing   conference   conducted   on   November   4,   2019, and \ncontained  in  a  Pre-hearing  Order  filed  that  same  date  and  hereby \naccepted as fact. \n \n 2.  The  claimant  has  proven  by  a  preponderance  of  the \nevidence  that  she  sustained  a  compensable  injury  to  her  back  on \nJuly  31,  2019,  in  the  form  of  an  aggravation  of  her  pre-existing \nback difficulties. \n \n 3. The  claimant  has  proven  by  a  preponderance  of  the \nevidence   that   she   is   entitled   to   medical   treatment   for   her \ncompensable  aggravation  of  her  pre-existing  back  difficulties; \nspecifically,   the   respondents   are   to   provide   the   claimant   an \nappointment with Dr. Luke Knox for a neurosurgical evaluation. \n \n The  claimant  now  asks  the  Commission  to  determine  if  she  is  entitled  to  medical \ntreatment for her compensable back injury in the form of surgical intervention as recommended \nby  Dr.  James  Blankenship.  Dr.  Blankenship  is  an  authorized  treating  physician  regarding  the \nclaimant’s compensable back injury. \n The  claimant  treated  for  her  back  injury  with  Dr.  David  Knox  in  July  of  2020.  The \nrespondent sent a letter to Dr. Knox on June 4, 2020, regarding his treatment of the claimant. On \n\nHarris-Hardy – G306938 & G905668 \n \n-4- \nJuly 27, 2020, Dr. Knox answered that letter and responded to questions posed by the respondent \nas follows: \n1. Within a reasonable degree of medical certainty, Officer Harris-\nHardy’s current symptoms appear to be related to the 7/13/19 work \ninjury.  Supportive  rationale  includes  her  history  and  continued \nfindings of numbness over the right lateral thigh. \n \n2. As this was related to her work injury, I have recommended that \nthe current treatment plan on Officer Harris-Hardy’s lumbar spine \nwould  include  pain  management.  I  believe  there  is  an  option  that \nshe may want to consider a spinal cord stimulator at some point. I \nwould  defer  to  the  Pain  Management  Service  concerning  these \nultimate treatment options. \n \n3.  I  do  not  believe  that  her  being  defined  as  maximum  medical \nimprovement at this time would be appropriate. \n \n4.  I  do  not  believe  that  defining  an  impairment  rating  at  this  time \nwould be appropriate as well. \n \nI  will  plan  to  follow  her  up  in  two  months  and  reevaluate  her  at \nthat time. \n \n In  August  of  2020  the  claimant  saw  Dr.  David  Cannon  for  pain  management.  This \ntreatment continued through January 11, 2024, and was primarily in the form of lumbar epidural \ninjections and transforaminal injections. In a visit note dated January 11, 2024, Dr. Cannon noted \nthat  the  epidural  injections  benefited  the  claimant  more  than  the  transforaminal  injections  and \nrecommended another epidural injection. Dr. Cannon also gave the claimant a surgical referral to \nDr. James Blankenship at that time. \n On April 15, 2024, the claimant was seen by Dr. Blankenship at the Neurosurgery Spine \nand Pain Management Center. Following is a portion of that visit note: \nHPI: \nLower back pain, bilateral hip and buttock pain, right greater than \nleft.  She  also  has  right  lower  extremity  pain.  She  has  decreased \nstrength   in   the   right   lower   extremity.   Standing   and   bending \n\nHarris-Hardy – G306938 & G905668 \n \n-5- \nincrease her pain with prolonged sitting. She also injured her knee \nwhen  she  was  injured  in  07/2019  pulling  a  garden  cart  back  into \nboxes  and  fell,  landing  on  her  coccyx.  She  has  had  multiple \ndifferent  injections  by  Dr.  Cannon  with  only  transient  relief.  She \nsaw  Dr.  Lowry  Barnes  for  her  knee  and  has  had  a  total  knee \nreplacement.   She   is   currently   taking   some   hydrocodone   and \noccasional  ibuprofen  but  does  not  tolerate  NSAIDs  or  gabapentin \nor  Lyrica.  Her  knee  injury  that  Dr.  Barnes  treated  her  for  was  an \nold workers’ comp injury. She has seen Dr. Knox in the past in \n2019.  Dr.  Knox  recommended  aquatic  therapy  and  a  sympathetic \nblock  which  is  pending,  I  guess.  According  to  this  report  that  we \nhave for her workers’ compensation carrier, Dr. Knox did not feel \nlike  her  problem  was  surgical,  although  I  do  not  have  his  note  to \nascertain  what  was  actually  said.  She  had  a  right  transforaminal \nESI  in  12/2022.  She  got  about  85%  relief  from  the  December \ninjection that lasted 4 months. \n \n*** \nImpression: \nHer   general   neurological   examination   reveals   some   soft   S1 \nfindings  with  paresthesias  in  the  right  S1  dermatome.  She  has \nabsent ankle reflexes bilaterally. I have reviewed the patient’s MRI \nin  its  entirety.  She  has  bilateral  foraminal  narrowing  secondary  to \ndisc space settling. At the L4-5 level she has lateral recess stenosis, \nalso  has  gross  annual  fissuring  bilaterally  in  the  extreme  lateral \ndisc  space.  She  also  has  an  extreme  lateral  disc  protrusion  at  the \nL3-4 level. This MRI was done in 07/2022. \n \nRecommendations: \nI  told  the  patient  it  is  really  impossible  for  me  to  outline an \nappropriate treatment course from here with the lumbar spine with \na  near  2-year-old  MRI,  so  I  told  her  we  need  to  get  an  MRI  and \nhave her come back in to see me. \n \nThere were some questions that her workers’ comp case manager \nhas forwarded to me. \n \n1.  Are  objective  findings  directly  related  to  the  mechanism  of \ninjury? The answer to that question is that I cannot really tell what \nher objective findings are today because I do not have a new MRI. \nShe  does  have  some  soft  S1  radicular  findings  which  certainly \ncould be coming from the neural compression that is noted on her \n2-year-old MRI, but I am not going to state anything with absolute \ncertainty about what is going on now based on a 2-year-old study. I \n\nHarris-Hardy – G306938 & G905668 \n \n-6- \ncertainly do not have any questions that the mechanism of injury is \nwhat has led to her current need for treatment. \n \n2. I will have to defer this until I see her back with a new MRI. \n \n On  June  5,  2024,  the  claimant  underwent  an  MRI  of  the  lumbar  spine  without  contrast. \nFollowing is a portion of that diagnostic report: \nIMPRESSION: \n1.  Severe  facet  arthropathy  with  bilateral  foraminal  stenosis  equal \nat  the  lumbosacrum  secondary  to  retrolisthesis  and  disc  space \nposteriorly. No neural compression is noted in the canal. \n \n2.  L4-5  severe  facet  arthropathy  with  mild  left  greater  than  right \nlateral recess stenosis. \n \n3.  Upper  lumbar  facet  arthropathy  with  no  significant  neural \nimpingement. \n \n On June 6, 2024, the claimant is seen by Dr. Blankenship for a follow-up visit after her \nlumbar MRI. Following is a portion of that visit note: \nHPI: \nThe patient is in today for followup. She does have a new MRI for \nreview today. She is still doing her physical therapy at Fort Smith. \nShe says it not afforded her any relief of the pain, but it is helping \nsome  with  her  strengthening.  She  is  having  low  back  pain  that \nradiates  to  bilateral  hips,  bilateral  buttocks,  and  goes  down  the \nbilateral   lower   extremities,   right   greater   than   left.   She   has \ndecreased  strength  in  the  right  leg.  She  rates  her  pain  about  90% \ntowards the worst pain imaginable. \n \n*** \nImpression: \nThe patient’s chief complaint is lower back pain, bilateral hip and \nbuttock pain with bilateral lower extremity pain, right greater than \nleft.  She  also  has  decreased  strength  in  the  right  lower  extremity. \nShe is back in today with a new MRI. As I indicated on her initial \nvisit,   she   does   have   retrolisthesis   at   the   lumbosacrum.   This \nexacerbates  slightly  in  extension,  reduces  slightly  in  flexion.  She \nalso  has  in  extension  some  slight  anterior  splaying  of  the  disc \nspace  at  L4-5  but  a  marked  reduction  in  flexion  that  at  her  very \nyoung  age  would  be  considered  segmentally  unstable.  I  have \n\nHarris-Hardy – G306938 & G905668 \n \n-7- \nreviewed  her  MRI  in  its  entirety.  She  does have  bilateral  lateral \nrecess  stenosis  at  L4-5  and  has  significant  foraminal  stenosis,  left \ngreater  than  right,  at  the  lumbosacrum.  Dr.  Lowry  Barnes  is  her \nnew  doctor.  He  has  done  a  total  knee  replacement  on  her.  She  is \ndoing  her  physical  therapy  in  Fort  Smith,  but  is  not  helping  her \npain, although she has had some improvement in her strength. \n \nOn  her  original  MRI,  she  did  have  gross  annular  fissuring  at  the \nL4-5  level.  It  is  not  as  apparent  on  this  MRI,  but  that  certainly \ncould   have   healed   over   the   last   several   years.   Her   SI   joint \nexamination is completely negative. Her piriformis examination is \nmarkedly positive. I told her that I do think that her malalignment \nand  instability  are  the  etiology.  Unfortunately,  we  are  fighting  5 \nyears  of  multiple  delays  in  her  treatment  with  different  positions \nwith her workers’ comp carrier delaying things. I do think her MRI \ndemonstrates   something   that   potentially   would   benefit   from \nsurgery. \n \n*** \nRecommendations: \nI  have  told  her,  before  we  start  talking  about  an  L4-5,  L5-S1 \narthrodesis, I would like for her to get in to see Dr. David Cannon \nafter  authorization  from  workers’  comp  for  consideration  of  a \npiriformis  injection.  I  am  going  to  have  Steve  write  out  some \nsuggestions  of  what  we  want  to  do  with  her  current  therapist  in \nFort Smith. I told her I want to see her back in 8 weeks after this is \ngiven  a  little  bit  more  time.  If  she  is  not  any  better  at  that  time, \nthen I think a discussion of an arthrodesis is not inappropriate. \n \n On  August  8,  2024,  the  claimant  was  again  seen  by  Dr.  Blankenship.  Following  is  a \nportion of that visit note: \nHPI: \nThe patient is in today for followup. Unfortunately, her workers’ \ncompensation carrier did not authorize any more physical therapy. \nShe  has  done  physical  therapy  in  the  past,  and  she  has  continued \non with her home exercises and stretches that they outlined for her. \nShe states that her pain is not changing. She still has low back pain \nto  bilateral  hips,  bilateral  buttocks.  The  right  is  greater  than  the \nleft.  She  has  decreased  strength  in  the  right  lower  extremity.  Pain \ngoes  down  the  bilateral  lower  extremities  to  the  knee  on  the  left \nand  down  to  her  foot  on  the  right.  Bending,  lying,  and  standing \naggravate  her  pain.  She  has  pain  with  Valsalva  maneuver.  She \ndenies any incontinence. She rates her pain about 80% towards the \n\nHarris-Hardy – G306938 & G905668 \n \n-8- \nworse pain imaginable. She had a right piriformis injection that did \ngive her some temporary relief in her leg pain but did not help her \nback, which we did not expect it to. \n \n*** \nDiagnosis: \nPostlaminectomy syndrome, not elsewhere classified. \n \nImpression: \nMs. Harris-Hardy was last seen in the office in early June. At that \ntime,  we  got  her  in  to  see  Dr.  Cannon  for  consideration  of \npiriformis  injection.  I  also  recommended  her  to  do  more  physical \ntherapy, but her workers’ comp carrier would not authorize it. She \ndid get her piriformis injection. She did have some transient relief. \nShe failed another round of conservative treatment. Her piriformis \ninjection did afford her some relief but only with her leg pain, and \nher  back  pain  is  more  significant.  The  patient  has  loss  of  normal \nlumbar   lordosis   with   marked   disc   space   settling   and   severe \nforaminal  stenosis  at  the  lumbosacrum.  She  also  has  marked \nposterior   splaying   of   the   disc   space   in   flexion   with   slight \nretrolisthesis  in  neutral  position  and  exacerbation  in  extension, \nindicative  of  a  gross  segmental  instability.  We  had  previously \ndiscussed    the    possibility    of    a    lumbar    arthrodesis    and \ndecompression. She does have significant foraminal stenosis at L4-\n5,  left  greater  than  right.  At  the  lumbosacrum,  she  does  have \nforaminal   stenosis   and   midline   disc   protrusion   with   annular \nfissuring. The L3-4 level does show some moderate facet changes \nbut no significant stenosis. \n \nRecommendations: \nI told her, having failed conservative measures, albeit limited with \nher workers’ compensation carrier, that it is time for us to discuss \nwhat  type  of  surgical  intervention  will  be  needed.  I  have  offered \nher  an  anterior  lumbar  interbody  arthrodesis  at  the  lumbosacrum. \nShe would then undergo an L4-5 LLIF as a second stage same-day \nprocedure.   She   would   then   undergo   an   LLIF   at   L4-5   for \nstabilization  of  her  unstable  disc  at  this  level.  She  would  also \nundergo    a    left-sided    decompression    with    extreme    lateral \ndecompression  at  the  L4-5  level.  The  medical  rationale  for  this  is \nshe  does  have  gross  segmental  instability  at  the  L4-5  level.  She \nalso  has  severe  foraminal  stenosis  at  the  lumbosacrum  and  disc \nspace  collapse.  We  need  to  elevate  her  neural  foramen,  and  the \nonly  way  to  do  this  is  with  interbody  implant  at the  lumbosacrum \nand stabilize her at L4-5 with an LLIF. Posterior pedicular fixation \nwill    supplement    her    anterior    arthrodesis.    After    a    lengthy \n\nHarris-Hardy – G306938 & G905668 \n \n-9- \ndiscussion,   the   patient   does   want   to   proceed   with   surgical \nintervention. \n \n On  August  14,  2024,  the  claimant  was  seen  by  Dr. Lowry Barnes  regarding  her \ncompensable knee injury. Following is a portion of that progress note: \nHistory  of  Present  Illness:  Victoria E.  Hardy  is  a  57  y.o.  female \npatient   Who   returns   for   evaluation   of   right   knee   pain   and \ndiscussion  of  triple  phase  bone scan  results  of  the  right  knee. \nOriginally  I  saw  her  as  an  independent  medical  evaluation.  She \ncontinues to have daily right knee pain. Pain is worse with weight-\nbearing.  What  weight-bearing  she  has  sharp  stabbing  proximal \nmedial tibia pain. \n \nRecently she saw Dr. Blankenship for low back pain. He discussed \nsurgical intervention of the lumbar spine which she is considering. \n \n*** \nAssessment & Problems addressed: \nPainful   right   total   knee   replacement   due   to   instability   and \nloosening of tibial component \nSmoker \nChronic narcotic use \n \n*** \nPlan: \nDiscussed  with  the  patient  that  triple  phase  bone  scan  results  did \nshow an increased update around the components of the right knee. \nConcerned for tibial component loosening. I am willing to proceed \nwith  revision  right  total  knee  arthroplasty  with  the  understanding \nby  the  patient  that  there  is  a  chance  we  may  make  her  better  with \nrevision  surgery  but  there  is  no  guarantee  and  we  may  make  her \nworse. Patient would like to proceed with revision right total knee \narthroplasty.  She  will  need  to  stop  smoking  6  weeks  then  we  will \nnicotine  test  her  and  if  her  nicotine  is  negative  then  we  will \nschedule surgery. We also discussed with the patient that smoking \nsensation prior to back surgery very important to decrease risk post \nop complications especially with wound healing. We did not know \nif  Dr.  Blankenship  discussed  this  with  the  patient  or  not.  We  also \ndiscussed tapering off narcotics so she will be off pain medication \n6 weeks prior to surgery. \n \nMy team discussed results with the case manager out in the waiting \nroom. The case manager stated that they could nicotine test her in \n\nHarris-Hardy – G306938 & G905668 \n \n-10- \nFort Smith to save her a trip down to Little Rock. We agree. Work \nnote was given to the patient not to lift more than 10 lb. and to be \nable to stand or sit as needed. \n \n On  September  23,  2024,  Dr.  Blankenship  issued  two  notes  regarding  the  claimant.  One \nnote, found at Respondents’ Exhibit 1, page 9, states: \nWe  are  currently  working  on  getting  her  surgery  authorized.  We \nare  going  to  do  postoperative  the  patient.  She  and  I  discussed \nsomewhat  on  her  visit  about  the  work  she  was  having  to  do. \nAlthough  it  may,  and  it  is  questionable  if  it  does,  technically  fall \nunder  the  restrictions,  she  is  currently  having  to  work  in  a  hot \nwarehouse, and it is exacerbating her pain. Since we have  already \ndecided to head toward surgery, having her come into surgery with \nworsening pain is not good. I have recommended that she stay off \nwork until we get her recovered after surgery. \n \nThe other note is found at Claimant’s Exhibit 1, page 90, and states: \nPlease be advised that the above patient has been a regular patient \nof this office and has been treated at our office. \n \nPlease  excuse  this  patient  from  her  obligation  to  appear  at  work \nuntil after patient has recovered from surgery. \n \nBoth notes are signed by Dr. Blankenship. \n On  October  31,  2024,  Dr.  Blankenship  once  again  sees  the  claimant.  Following  is  a \nportion of that visit note: \nHPI: \nThe patient is in today for followup. The patient continues to have \nlow back pain that radiates to bilateral hips, bilateral buttocks, goes \ndown the posterior bilateral lower extremities, left to the knee, the \nright  goes  all  the  way  down  into  her  foot.  She  has  decreased \nstrength  in  her  right  leg.  We  offered  surgical  intervention.  She \nelected to proceed, but unfortunately her workers’ compensation \ncarrier  has  not  approved  this  yet.  She  rates  her  pain  about  90% \ntowards  the  worst  pain  imaginable.  She  is  also  having  worsening \nknee pain. She sees Dr. Barnes, who has recommended a right total \nknee revision, but Dr. Barnes thinks that she should have her back \nsurgery  done  first.  Workers’  comp  has  not  approved  her  back \n\nHarris-Hardy – G306938 & G905668 \n \n-11- \nsurgery but has approved her knee surgery, stating that her lumbar \nproblems are age related. \n \n*** \nImpression: \nMs.   Hardy   has   already   seen   me,   and   we   discussed   surgical \nintervention with an arthrodesis at M4-5 and L5-S1 with unilateral \npedicular  fixation  on  the  left.  The  patient  also  has  knee  problems, \nand  Dr.  Barnes  has  talked  to  her  about  possibly  doing  a  revision, \nwhich actually has been approved by her workers’ comp folks, but \nDr.  Barnes,  the  patient,  and  myself  feel  like  she  could  have  her \nlower  back  down  and  rehabbed  prior  to  doing  a  right  total  hip \nrevision. Her workers’ compensation carrier states that her back \nproblems are “age related.” \n \nThe  patient  states  that  she  has  had  some  back  problems  over  the \nyears   but   nothing   of   this   significance,   and   this   exacerbation \nhappened immediately after her injury. I have reviewed her studies \nagain.  As  indicated  previously,  the  patient  has  a  midline  disc \nprotrusion  with  annular  fissuring  at  the  lumbosacrum.  Her  plain \nradiographs  demonstrate  the  patient  has  retrolisthesis  at  the  L4-5 \nand  L5-S1  levels.  These  slightly  exacerbate  the  extension  and \ncompletely   reduce   in   flexion,   indicative   of   gross   segmental \ninstability.  The  patient  most  certainly  does  have  degenerative \nchanges  in  her  back.  I  would  be  surprised  if  someone  of  her  age \ndid not have degenerative changes. Historically, the pain that she is \ncurrently having originated with her work injury. \n \nRecommendations: \nIn  summary,  I  agree  completely  with  Dr.  Barnes  and  the  patient \nthat  fixing  her  back  first  and  then  considering  her  total  knee \nrevision is the better approach to take. I told her that my offering of \nsurgical  intervention  in  her  lower  back  is  unchanged.  I  told  her  I \nstill  feel  like,  based  on  a  reasonable  degree  of  medical  certainty, \nthat  her  need  for  treatment  both  conservatively  up  and  until  now \nand  surgically  now  failing  conservative  treatment  is  still  directly \nrelated to her work-related injury. \n \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n\nHarris-Hardy – G306938 & G905668 \n \n-12- \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \n The  claimant’s  medical  record  and  testimony  lay  out  a  compelling  case  for  a \ncompensable  back  injury  that  has  failed  conservative  treatment  and  is  left with only  surgical \nintervention to improve the claimant’s condition. While lengthy at times, Dr. Blankenship lays \nout   in   detail   the   reasoning   and   anatomical   cause   for   the   surgical   intervention   he   has \nrecommended.  Dr.  Blankenship  also  believes,  “based  on  a  reasonable  a  degree  of  medical \ncertainty,  that  her  need  for  treatment  both  conservatively  and  up  until  now [October  31,  2024] \nand  surgically  now  failing  conservative  treatment  is  still  directly  related  to  her  work-related \ninjury.” The claimant is able to prove by a preponderance of the evidence that she is entitled to \nthe surgical recommendations of Dr. Blankenship as they are reasonable and necessary treatment \nfor her compensable back injury. \n The  claimant  has  asked  the  Commission  to  determine  whether  she  is  entitled  to \ntemporary total disability benefits from September 23, 2024, to a date yet to be determined. \nIn order to be  entitled to temporary total disability benefits, the claimant  has the burden \nof proving by a preponderance of the evidence that he remains within his healing period and that \nhe suffers a total incapacity to earn wages as a result of his compensable injury. Arkansas State \nHighway  &  Transportation  Department  v.  Breshears, 272  Ark.  244,  613  S.W.  2d  392  (1981).\n The  claimant’s  failure  of  conservative  treatment and  her  current  need  for  surgical \nintervention  due  to  her  compensable  back  injury  place  the  claimant  in  a  continued  state  of  a \nhealing period. As to the claimant’s total incapacity to earn wages, Dr. Blankenship in two \nseparate  notes,  written  on  September  23,  2024,  removes  the  claimant  from  work.  One  note, \n\nHarris-Hardy – G306938 & G905668 \n \n-13- \nfound at Respondents’ Exhibit 1, page 9, discusses the claimant’s current working restrictions \nand  circumstances  which  include  the  technicalities  of  her  restrictions  and  working  in  a  hot \nwarehouse. Dr. Blankenship felt this combination caused a worsening of pain which in his words \n“is not good” coming into surgery. The other note, found at Claimant’s Exhibit 1, page 90, in a \nstraight-forward  manner,  removes  the  claimant  from  work  beginning  September  23,  2024.  Dr. \nBlankenship  has  seen,  treated,  and  evaluated  the  claimant  on  multiple  occasions.  Given  his \nextensive  knowledge  of  the  claimant  and  her  condition  I  agree  with  Dr.  Blankenship’s \nassessment that the claimant should be removed from work beginning September 23, 2024, until \na date when she has recovered from surgery. The claimant is able to prove by a preponderance of \nthe evidence that she is  entitled to temporary total disability benefits from September 23, 2024, \nto a date yet to be determined. \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 witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nOctober  14,  2024,  and  contained  in  a  Pre-hearing  Order  filed October  15,  2024,  are  hereby \naccepted as fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \nadditional medical treatment for her compensable back injury in the form of surgical intervention \nas recommended by Dr. James Blankenship. \n\nHarris-Hardy – G306938 & G905668 \n \n-14- \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \ntemporary total disability benefits from September 23, 2024, to a date yet to be determined. \n 4.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  her  attorney  is \nentitled  to  an  attorney’s  fee  in  this  matter  commiserate  with  the  Arkansas  Workers’ \nCompensation Act and the benefits awarded herein. \n ORDER \nThe   respondents shall   pay   the   cost   associated   with   the   surgical   intervention \nrecommended by Dr. Blankenship and its aftercare.  \nThe  respondents  shall  pay  the  claimant  temporary  total  disability  benefits  beginning \nSeptember 23, 2024, to a date yet to be determined.  \nThe respondents shall pay to the claimant's attorney the maximum statutory attorney's fee \non the benefits awarded herein, with one half of said attorney's fee to be paid by the respondents \nin addition to such benefits and one half of said attorney's fee to be withheld by the respondents \nfrom such benefits pursuant to Ark. Code Ann. §11-9-715. \n All  benefits  herein  awarded  which  have  heretofore  accrued  are  payable  in  a  lump  sum \nwithout discount. \n This award shall bear the maximum legal rate of interest until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G306938 & G905668 VICTORIA HARRIS-HARDY, Employee CLAIMANT SEBASTIAN COUNTY JUDGE, Employer RESPONDENT AAC RISK MANAGEMENT SERVICES, Carrier RESPONDENT OPINION FILED FEBRUARY 18, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Seba...","fetched_at":"2026-05-19T22:43:42.026Z","links":{"html":"/opinions/alj-G306938-2025-02-18","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/HARRIS-HARDY_VICTORIA_G905668-G306938_20250218.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}