{"id":"alj-G409071-2023-06-23","awcc_number":"G409071","decision_date":"2023-06-23","opinion_type":"alj","claimant_name":"Ruby Moody","employer_name":"Arkansas Department Of Community Correction","title":"MOODY VS. ARKANSAS DEPARTMENT OF COMMUNITY CORRECTION AWCC# G409071 JUNE 23, 2023","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["cervical","lumbar","neck","back","hip","carpal tunnel","fracture","shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/MOODY_RUBY_G409071_20230623.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MOODY_RUBY_G409071_20230623.pdf","text_length":46548,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: G409071 \nRUBY MOODY, EMPLOYEE                                                                               CLAIMANT \n \nARKANSAS DEPARTMENT OF COMMUNITY  \nCORRECTION, EMPLOYER                                                                          RESPONDENT \n                                                                                                         \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/THIRD PARTY ADMINSTRATOR (TPA)                               RESPONDENT \n \n \n               OPINION FILED JUNE 23, 2023    \n         \nHearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Little Rock, \nPulaski County, Arkansas. \n \nClaimant  represented  by  the  Honorable  William  C.  Frye,  Attorney  at  Law,  North  Little  Rock, \nArkansas. \n \nRespondents represented by the Honorable Charles H. McLemore, Attorney at Law, Little Rock, \nArkansas. \n \n \nStatement of the Case \nOn  March  29,  2023,  the  above-captioned  claim  came  on  for  a  hearing in  Little  Rock, \nArkansas.  A pre-hearing telephone conference was conducted on January 26, 2023, from which a \nPre-hearing Order was filed on that same day.  A copy of the said order and the parties’ responsive \nfilings have been marked as Commission’s Exhibit No. 1 and made a part of the record without \nobjection. \nStipulations \nDuring the pre-hearing telephone conference, and/or during the hearing the parties agreed \nto the following stipulations: \n\nMoody – G409071 \n \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n2. That  the  employee-employer-carrier  relationship  existed  at  all  relevant  times \nincluding on or about October 30, 2014, when the Claimant sustained compensable \ninjuries to her cervical and lumbar spine. \n3. That  the  Claimant's  average  weekly  wage  (AWW)  on  the  date  of  her  accidental \ninjury was $695.84, with corresponding compensation rates of $464.00 per week \nfor  temporary  total  disability  (TTD)  compensation,  and  $274.00  each  week  for \npermanent partial disability (PPD) benefits. \n4. That Respondents accepted and are paying a combined value rating of 19% for the \nClaimant’s lumbar and cervical injuries. \n5. That Respondents have controverted this claim for wage-loss disability benefits.  \n6. All issues not litigated are reserved under the Arkansas Workers’ Compensation \nAct. \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing included the following: \n1. Whether the Claimant is entitled to wage loss disability for the combined rating of \n19% for her compensable neck and back injuries.   \n2. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \nContentions \n The respective contentions of the parties are as follows: \n\nMoody – G409071 \n \n3 \n \nClaimant:  The  Claimant  was  involved  in  a  compensable  motor  vehicle  accident.    The \nClaimant sustained back and neck injuries.  For her cervical injury, she was treated by Dr. Shahim \nand Dr. Roman.  Dr. Shahim performed a cervical fusion.  Dr. Barry Baskin assigned a rating of \n10% to the body as a whole.  The Claimant also sustained injuries to the lumbar spine.  She was \nfollowed  by  Dr.  Rosenzweig  for  what  he  termed  a  disc  herniation  of  L3-4.    The  Claimant \nunderwent  another  MRI,  which  showed  a  disc  herniation  at  L5-S1.    The  Claimant  has  been \nfollowed  for  this  by  Dr.  Roman,  who  has  performed  steroid  injections.    Dr.  Roman  placed  the \nClaimant at maximum medical improvement on May 2, 2022, and issued an impairment rating of \n5%, pursuant to the A.M.A. Guidelines, Fourth Edition, Table 75, Page 113. \nAll of the Claimant' s treating physicians have opined that the Claimant cannot return to \nwork in law enforcement. Therefore, the Claimant is entitled to wage loss disability.  The Claimant \nis willing to undergo a vocational rehabilitation assessment at the expense of the Respondents. \nRespondents:  The Respondents contend that the Claimant reported having an injury to her \nneck  and  low  back  on  October  30,  2014  which  Respondents  accepted  as  compensable.  The \nRespondents  contend  that  the  Claimant  has  been  provided  reasonable  and  necessary  medical \ntreatment for the compensable injuries to her cervical and lumbar spine, including ongoing pain \nmanagement  treatment  with  Dr.  Carlos  Roman,  and  treatment  with  Dr.  Reza  Shahim  who \nperformed cervical fusion at C6-7 and partial corpectomy at C5 surgery on October 26, 2021.  Dr. \nShahim did not find the Claimant to be a surgical candidate for her lumbar spine, recommending \nconservative treatment instead when he released the Claimant on April 4, 2022.  The Claimant has \nalso  been  seen  by  Dr.  Barry  Baskin,  who  on  April  11,  2022  determined  the  Claimant  to  be  at \nMaximum Medical Improvement and assigned the Claimant a 10% anatomical impairment rating \nto  the  body  as  a  whole  for  her  cervical  spine.  Dr.  Baskin  found  the  Claimant  did  not  have  any \n\nMoody – G409071 \n \n4 \n \npermanent impairment to her lumbar spine because he specifically found her lumbar spine to be a \ndegenerative process, not the result of a work injury from October 31, 2014.\n1\n  Dr. Baskin wrote \nthat  the  Claimant  cannot  return  to  all  the  duties  of  a  correctional  officer,  including  self-defense \ntactics,  however,  the  Claimant,  who  has  two  college  degrees,  was  not  found  to  be  completely \nunable to work by Dr. Baskin.  Respondents have agreed to provide this Claimant with vocational \nrehabilitation. \n The  Respondents  have  paid  the  Claimant  temporary  total  disability  benefits  during  her \nhealing period, and Respondents have accepted the 10% anatomical impairment assigned for her \ncervical  spine.    The  Claimant  continues  to  be  provided  medical  treatment  by  the  Respondents, \nwhich  is  in  the  form  of  pain  management.    The  Respondents  contend  that  the  Claimant  cannot \nsustain her burden of proving that she is entitled to permanent disability benefits in excess of the \nanatomical impairment rating.        \nThe Respondents reserve the right to raise additional contentions, or to modify those stated \nherein, pending the completion of discovery. \n                    FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear  the  testimony  of  the  Claimant  and  observe  her  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §11-9-704  (Repl. \n2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n \n    claim. \n \n \n1\n The correct date of the Claimant’s accidental work injury is October 30, 2014.  \n\nMoody – G409071 \n \n5 \n \n \n2.     I hereby accept the above-mentioned proposed stipulations as fact. \n \n    3.        The Claimant proved by a preponderance of the evidence that she sustained wage- \n \n          loss disability benefits in the amount of 24% over and above her combined value  \n \n          rating of a 19% impairment for her neck and back injuries of July 19, 2022.  \n \n          4.        The Claimant’s attorney is entitled to a controverted attorney’s fee on the indemnity   \n \n                      benefits awarded herein.  \n \n          5.        All issues not litigated are reserved under the Arkansas Workers’ Compensation  \n                     Act.      \nSummary of Evidence \nDuring the hearing, the only witness to testify was the Claimant, Ms. Ruby Moody.  \n            The  record  consists  of  the  March  29,  2023  hearing  transcript,  comprising  the  following \nexhibits: Specifically, Commission’s Exhibit No. 1 includes the Commission’s Prehearing Order \nfiled  on  January  26,  2023 and the parties’ responsive  filings; Respondents’  Exhibit  No.  1  is a \nMedical  Exhibit,  consisting  of  seventy-one  pages; Respondents’  Exhibit  No.  2  encompasses a \nNon-Medical Packet, consisting of twenty-five pages. \n                                                  Testimony \n  \n The Claimant, age 57, lives in Arkadelphia, Arkansas.  She has confirmed that she takes \nvarious  prescription  medications  for  her  compensable  injuries.    Her  injury  medications  are \nprescribed  by  Dr.  Carlos  Roman,  and  her  primary  care  physician,  Dr.  Robert  Durham.    The \nClaimant testified that she takes Flexeril, Gabapentin, Hydrocodone, Duloxetine, Metformin, and \nCymbalta.  She confirmed that her medications have side effects of memory loss, particularly with \nthe  Gabapentin.    According  to  the  Claimant,  she  forgets  things  during  conversations  and  has a \nchallenging time with finding the right words. \n\nMoody – G409071 \n \n6 \n \n She confirmed she has been in law enforcement for fifteen years.  The Claimant confirmed \nshe has a Bachelor of Science degree.  She previously worked at a jail/sheriff’s department.  The \nClaimant has past work experience at a sewing factory.  The Claimant obtained an associate degree \nin  respiratory  therapy  in  1999,  but  she  never  obtained  a  license.    She  worked  in  this  field  at  a \nhospital for about a year.   \nAccording  to  the  Claimant,  she  next  went  to  work  in  law  enforcement  at  Benton  Work \nRelease Program.  The Claimant supervised inmates, conducted pat-downs, and she had to be able \nto fire a gun, if needed.  If an inmate became unruly, they had to be able to do a takedown.  The \nClaimant is not allowed to go back to this kind of work due to her compensable injuries.    \n The Claimant testified that she is unable to return to Correctional Officer or Parole Officer \nwork because she has to be a 100% to work in law enforcement.  She must be able to qualify for \nfirearms, which she is unable to do.  They have to be able to do defensive tactics courses, transport \ninmates,  and  do  pat-downs  searches.    The  Claimant  went  to  work  in  February  2002  as  a \ncorrectional  officer at Clark County Sheriff’s  Department.    She  gave  a  brief  overview  of  her \nemployment duties while working for the sheriff’s department.  (TR p. 21) \n The Claimant went back to college and earned a Bachelor of Science in Psychology and a \nminor in Criminal Justice.  She graduated from Henderson State University.  Shortly thereafter, \nthe Claimant went to work for the Arkansas Department of Community Correction (ADCC), as a \nParole/Probation Officer.  The Claimant is also prevented from working as a Parole Officer due to \nher not being able qualify for firearms.  She gave an overview of her employment duties for that \nposition.  (TR p. 22)  \nHowever, the Claimant testified that is unable to turn her neck since the surgery.  According \nto  the  Claimant,  her  neck  is  restricted,  and  this  affects  her  ability  to  turn  while  driving.    The \n\nMoody – G409071 \n \n7 \n \nClaimant  confirmed  she can  drive  to  Arkadelphia  sometimes,  which  is  seven  minutes  from  her \nhome.    She  explained  that  she  unable  to  do  all  the  bending  and  turning  required  for  driving.  \nAccording  to  the  Claimant,  the  medications  she  takes  prevent  her  from  carrying  a  gun.    She \ntestified that she has numbness in her right hand and neck.  The Claimant testified that she had to \ncarry a .9 mm Glock, which is a heavy gun, and she does not think she would be able to carry that \ntype of gun on her hip all day.  Under further questioning, the Claimant confirmed she had to input \ndata into the computer throughout her workday.  However, she testified that she is able to spend \nonly ten minutes at a computer before she starts tensing up and hurting. \n The Claimant gave an overview of her accidental injury.  She essentially testified that on \nOctober 30, 2014, they had training in Hot Springs, and were on their way home.  Per the Claimant, \nwhen they got to the red light, one of her coworkers ran a red light and hit a car, that car hit another \ncare, and then a car hit them.  The Claimant confirmed she was riding in the back seat.  She was \ntransported to the hospital.  The Claimant admitted she underwent her first surgery on October 26, \n2021.  Dr. Shahim did a cervical fusion.  According to the Claimant, she thought the first surgery \nwas  an  answer  to  her  prayers,  but  after  three  weeks  she  had  to  undergo  another  surgery.    She \nadmitted that eventually they sent her to Dr. Roman for pain management.  He did some injections \nin her back, which provided her a little relief of her symptoms.  After the Claimant’s third injection, \nshe did not get any relief.  As a result, he performed a rhizotomy, and it worked for a little while, \nbut the pain came back.  The Claimant admitted she had back surgery at L5-S1 in September of \n2022.  According to the Claimant, the back surgery provided her with some relief.  She tried to \nwalk but the next day she would be in bed with her hips hurting all the way down her leg.  \n She confirmed that she has undergone two  functional capacity  evaluations (FCEs).   The \nlast evaluation was performed in January 2023.    The Claimant agreed that she can occasionally \n\nMoody – G409071 \n \n8 \n \nsquat,  crouch,  kneel,  bend,  climb  stairs,  and  stoop.    She  testified  that  she  gets  only  four  to  five \nhours of sleep each night.  Her husband does all the cooking.  The Claimant testified that prior to \nher  injury,  she  always  stayed  active  by  walking,  riding  bikes,  and  playing  basketball.  Also,  the \nClaimant testified that she and her husband always traveled, but she is unable to do so now.   \nAccording to the Claimant she gets up late because she is unable to sleep at night.  After \ntaking a shower, she is back on the couch.  She testified that she is able to sit for an hour before \nhaving to move around or lie down.   Her day entails walking through the house picking up stuff, \ntrying to help with the cleaning and watering her flowers.                 \n    The Claimant testified that she was fired because she was not at 100% and they do not have \nany light duty work.  According to the Claimant, after Dr. Baskin gave her limitations, they sent \nher a letter of termination.  She confirmed meeting with someone from Systemedic. However, after \nher  meeting  with  the  consultant  she  had  surgery  on  her  back,  which  caused  her  vocational \nrehabilitation to be put on hold.  She denied that the consultant provided her with any jobs that she \nneeded to apply for before her back surgery in the Arkadelphia/Hot Spring/Malvern area.  Nor did \nthe consultant provide the Claimant with a list of jobs that she needed to apply for after their second \nmeeting.  The Claimant confirmed that she has looked for work online.  The Claimant looked for \nwork at DHS as a family service worker.  The pay for that position ranges from $9.00 to $11.00 \nan hour.  However, the Claimant has not heard from anyone since putting in her application.  She \nconfirmed that this range of pay is significantly lower than what she was making at the Arkansas \nDepartment of Community Correction, which was $22.50 an hour.  The Claimant confirmed that \nif the Department of Correction contacts her with accommodations for her previous job, she would \ngo back to work for them if she could.           \n\nMoody – G409071 \n \n9 \n \n She confirmed that she worked for ADCC seven years after her accident.  The Claimant \nverified that she last worked for ADCC in 2021.  The Claimant agreed that it was not until after \nher surgeries that she was no longer able to  perform her job duties.  She stated that she worked \nthrough  all  of  her  pain  and  everything  because  she  did  not  want  to  get  fired.    According  to  the \nClaimant, she did not let them know how much pain she was in or how bad she was hurting for \nfear of being fired.  However, the Claimant was eventually fired.  \n On  cross-examination,  the  Claimant  confirmed  her  accident  date  was  October  30,  2014.  \nAt  that  point,  she  began  missing  work,  but  she  returned  to  work  on  November  17,  2014.    The \nClaimant  confirmed  her  signature  on  the  Form  S.    It  is  dated  December  9,  2014.    She  also \nconfirmed the Form AR-N.  Her signature is on this Form and is dated August 21, 2015. \n The Claimant confirmed her medications.  She admitted to taking Duloxetine (Cymbalta), \nwhich is an anxiety and depression, while working.  The Claimant began taking this medication in \n2019.    She  was  started  on  it  by  Dr.  Roman  after  one  of  her  surgeries.    She  confirmed  that  she \ncooperated and did what was asked of her when she underwent the FCE.  \n Under further questioning, the Claimant testified that she had to physically take down an \ninmate probably once a week.  She had to call for help if the inmate was in her office.  \n The  Claimant  provided  the  following  explanation  of  her  employment  duties  as  a \nParole/Probation Officer at the Department of Community Correction: \nQ How much time did you spend handling these inmates?    \nA Every day, all day.  That’s my job.  They come in the office and whatever needed \nto be done: home visits, you’re seein’ inmates, you’re going to court, you see inmates at \nthe jail, you may take ‘em to the jail.  So I worked eight hours and on-call so I saw inmates \nall the day -- all  -- every day, all day.       \n\nMoody – G409071 \n \n10 \n \nThe Claimant admitted that she also uses a computer every day.  She testified that there  \nwas no set thing she had to do as a Parole Officer.  According to the Claimant, she had to be able \nto multitask.  The Claimant testified that she had to use a computer all day, every day.  She also \nhad  a  laptop  that  she  used  to  take  notes  at  home.    Her  caseload  was  increased,  and  they  had  to \nperform drug tests and check to see if they were making payment on their fees. \n She  admitted  that  during  her  deposition,  she  testified  that  she  had  taken  trips  to  Texas.  \nHowever, the Claimant explained that this was probably before she had her surgeries.  She testified \nthat she does not take long trips since her surgeries.  The Claimant testified that Little Rock is too \nfar for her to travel, unless she is able to sit in the back seat, but that makes her nauseated. \n The Claimant was asked if during her January 18 meeting with vocational consultant that \nshe was not looking for work and nor was she interested in back to work.  Her reply was: “I don’t \nremember telling like that, no.”  The Claimant essentially testified that she was not sure if she \ncould do some kind of work until she attempts to do so.  She confirmed that the splints worn on \nher wrists were not prescribed by a medical doctor.                \n          Medical Evidence  \nOn April 7, 2016, the Claimant returned to Dr. Kenneth M. Rosenzweig for her back pain.  \nShe had been doing well with her medication as long as she did not over-exert herself.  At that \ntime,  the  Claimant  was in  no  real  pain  to  speak  of,  and  she  was  limiting  her  activities.    His \nimpression was “Satisfactory function status post motor vehicle accident with chronic pain.” Dr. \nRosenzweig opined the Claimant was functionally at MMI (maximum medical improvement).  In \nfact,  the  Claimant  had  been  back  at  work  and  doing  her  job  without  restrictions,  but  she  was \nrequiring some continued medical management to keep her functional.   \n\nMoody – G409071 \n \n11 \n \nThe  Claimant  underwent  an  independent  medical  evaluation  by  Dr.  Carlos  Roman, \nSeptember 4, 2018, for an injury that occurred in October 2014.  Her injury occurred while working \nfor the Department of Correction.  She reported having injured her back in a car wreck.  Since that \ntime,  the  Claimant  had  been  in  treatment.    At  time,  the  Claimant  had  increasing  radicular  pain \ndown her right leg, which had been her ongoing complaint since her injury.  The MRI of her lumbar \nspine was basically normal, except at the L5-S1 where that was broad-based, right paracentral disc \nprotrusion, which Dr. Roman related to her car accident.  At that time, Dr. Roman recommended \nthat the Claimant take Cymbalta for her injury symptoms and an epidural steroid injection per her \nrequest.  \nOn March 11, 2020, The Claimant returned to Dr. Roman for follow-up care of her chronic \nneck pain.  She was still having pain running down her arms and hands.  Dr. Roman looked at the \nClaimant’s MRI from a year ago.  She had a disc osteophyte, C6-C7 with some correlation to her \narm pain.  Dr. Roman also noted that the Claimant had a disc bulge at L5-S1 on the right side.  She \nalso had some radicular pain down her hip and leg that was amenable to an epidural injection about \neight to nine months ago.  Dr. Roman reported that they performed a cervical injection on January \n20, but it did not affect her symptoms even on a temporary basis.  At that time, the Claimant was \nstill up at night due to her arms and hands.  He did a Tinel’s test, and she had some mild tingling \nin the hand.  However, Dr. Roman sensed that the Claimant possibly had carpal tunnel syndrome.  \nTherefore,  he  did  want  to  do  a  second  epidural  injection.    Dr.  Roman  said  that  he  would  have \nexpected more response had her symptoms been coming from her cervical.  He told the Claimant \nthat he believed her complaint of numbness in the arm was predominantly coming from her median \nnerve in her hands.  Therefore, Dr. Roman ordered an EMG study to assess these complaints. \n\nMoody – G409071 \n \n12 \n \nDr.  Brent  Sprinkle  performed  an  EMG  with  NCV  on  April  8,  2020.    At  that  time,  Dr. \nSprinkle assessed the Claimant with carpal tunnel syndrome, bilateral upper limbs.  \nOn that same day, Dr. Roman saw the Claimant  in follow-up care of her  back  and neck \npain.  He noted that the Claimant had complaints of lumbar spine.  Per this clinic note, Dr. Roman \nstated  that  the  EMG  summary  did  not  show  any  diagnostic  evidence  of  cervical  radiculopathy, \nbranchial   plexopathy,   branchial   plexopathy,   peripheral   neuropathy,   or   focal   ulnar   nerve \nentrapment.  However, Dr. Roman opined that her symptoms correlated to carpal tunnel syndrome, \nfor which he performed carpal tunnel injections.  Dr. Roman’s Final Diagnoses were: “1.  Chronic \nlow back pain.  2.  Lumbar disc disease.  3. Cervical disc disease, C6-C7.  4. Lumbar radiculopathy, \nright L5 and S1.  5. Low back pain.  6. Lumbar spondylosis.  7. Long-term opiate use by way of \ntramadol.  8. opiate use by way of tramadol.  9. Carpal tunnel syndrome left and right sides.  10. \nNeck pain.” \nOn  August  5,  2020,  the  Claimant  presented  to  Dr.  Roman  for  continued  neck  and  back \npain.  She had increasing sciatic pain going down both hips and legs, which was greater  on the \nright at this time, but it tended to vary.  Dr. Roman stated that the Claimant had “classic sciatica.”  \nShe missed an appointment for an injection because she thought pain was getting better.  However, \nat that time it was worse, and she wanted to reschedule.   \nDr. Reza Shahim authored an Operative Report on October 26, 2021: \nPREOPERATIVE DIAGNOSIS: \nCervical stenosis at C6-C7. \n \nPOSTOPERATIVE DIAGNOSIS: \nSevere foraminal stenosis, bilateral C6-C7 with chronic radiculopathy. \n \nOPERATIVE PROCEDURES: \n \n1.  Anterior cervical fusion, C6-C7, partial corpectomy of C5, resection of osteophytes,  \n     anterior fusion with structural allograft, bone marrow aspirate from right iliac crest,  \n\nMoody – G409071 \n \n13 \n \n     anterior instrumentation with a K2, Stryker cervical plating at C6-C7. \n2.  Interpretation of localizing fluoroscopy and operation microscopy.   \n \nOn January 20, 2022 the Claimant was evaluated by Dr. Barry Baskins for an impairment  \nrating.  The Claimant’s chief  complaints  were neck pain, low back pain,  occasional left big toe \nnumbness, and occasional numbness in the right hand.  Specifically, Dr. Baskins wrote, in relevant \npart: \nREVIEW OF MEDICAL RECORDS:  ... Recent imaging in November 2021 revealed \nher to have postop changes at C6-C7 without radiographic evidence of hardware fracture, \nmild to moderate degenerative change at C5-C6. \n \nPHYSICAL EXAMINATION: This is a pleasant 5 feet 3 inches, 180-pound lady in no \napparent distress.  Vital signs stable, afebrile.  Her neuromuscular exam, cranial nerves are \notherwise negative.  She has Patrick’s test on the right, negative on the left.  Her strength \nis  5/5  throughout.    Examination  of  the  cervical  spine  reveals  a  well-healed  surgical  scar \nanteriorly.  She has good range of motion in the cervical spine.  Lumbar imaging studies \nrevealed lumbar degenerative changes primarily with moderate facet arthropathy at L3-L4, \nL4-L5  and  L5-S1.    Straight  leg  raise  is  negative.    Patrick’s test is negative.  Strength is \ngood.  Motor function is grossly intact.  Sensation is intact.  \n \nIMPRESSION: Ms. Moody [the Claimant] is a nice lady referred for impairment rating \nbased on an October 31, 2014, motor vehicle accident.  She underwent an anterior cervical \ndiscectomy and fusion with Dr. Shahim.  She does have some degenerative facet disease \nin the lumbar spine.  Imaging studies today ordered by me indicate multilevel degenerative \ndisc disease.  This was a lumbar spine x-ray and x-rays of her pelvis.  She has a right greater \nthan  left  sacroiliac  degenerative  changes.  Mild  bilateral  hip  osteoarthritis.    I  think  Ms. \nMoody is doing overall fairly well.   She is still having back pain and is under treatment \nwith Dr. Roman.  She has had a cervical fusion.  She is currently on FMLA. \n \nPLAN:   She  does  have  an  impairment  rating.    The  AMA  Guides  to  the  Evaluation  of \nPermanent Impairment 4\nth  \nEdition page 113 table 75 would give her an impairment rating \nof 9% to the whole person based on category IIe.  She does have degenerative facet disease \nin  the  lumbar  spine  which  is  probably  exacerbated  by  her  accident.  She  is  still  under \ntreatment for that.  I will see her in follow-up in about six weeks.  She has normal neuro \nexam.  She has some subjective left big toe numbness and Positive Patrick’s on the right \nside  of  uncertain  etiology.    She  does  have  some  hip  arthritis  which  is  unclear  as  to  the \netiology.  I will go ahead and give her an impairment rating. I look forward to seeing her \nback and appreciate the opportunity to assist in this nice lady’s care. \n \nAn MRI of the Claimant’s cervical spine without contrast was performed on February 10,  \n2022.  Dr. Samuel E. Edwards opined the following: \n\nMoody – G409071 \n \n14 \n \n IMPRESSION: \n 1.  ACDF at C6-7. \n 2.  Multilevel degenerative disc disease and facet arthropathy. \n 3.  Moderate to severe narrowing of the right neural foramen at C3-4. \n 4.  Moderate of severe narrowing of the left neural foramen at C5-6. \n 5.  Severe narrowing of the left neural foramen at C6-7. \n \n On that same day, the Claimant underwent an MRI of the lumbar spine without contrast.  \nDr. Edwards rendered the following IMPRESSION: “1.  Multilevel degenerative disc disease and \nfacet  arthropathy.    2.    Central/right  paracentral  disc  protrusion  at  L5-S1  contacts  and  slightly \ndisplaces the traversing right S1 nerve root.” \n The Claimant presented to Dr. Shahim on April 4, 2022, for follow-up evaluation of her \nspondylosis.  Cervical (spondylosis without myelopathy, cervical region) of the cervical spine.  Dr. \nShamin noted that he saw the Claimant on February 10, 2022, at which time she was prescribed \nMobic 7.5 mg tablets BID and was to take one tablet twice daily as needed.  Per this visit note, Dr. \nShahim referred the Claimant to a specialist.  Her pain intensity was: 5.0 5/10 pain.  Dr. Shamin \nnoted that the Claimant had undergone cervical fusion approximately six months ago.  He opined \nthat at that point, the Claimant was at maximum medical improvement (MMI) with regard to her \ncervical disc herniation. \n On April 11, 2022, the Claimant underwent an evaluation by Dr. Baskin.  At that time, the \nClaimant complained of pain in her neck.  Dr. Baskin wrote that he had looked at the Claimant’s \njob description, but he did not think she could resume her work.  He opined that the Claimant is \nnot able to do some of the essential job functions of a correctional officer.  Specifically, she would \nnot be able to use physical force sufficient to restrain when encountering life threating situations \nor able to use force safely and appropriately for self-protection and to protect other officers and \ncitizens when necessary.  He also stated that the Claimant would not be able to do all aspects of \nconducting  a  search  and  seizure  procedure.    This  included  subduing  and  placing  offenders  in \n\nMoody – G409071 \n \n15 \n \nhandcuffs and restraints.   He also stated that the Claimant is able to drive her own car, but she has \nlimited range of motion in her cervical spine on physical exam that day and on previous exams in \nall planes and in particular rotation.  This would place the Claimant at risk of having an accident.  \nDr. Baskin also believed the Claimant would be able to qualify for use of a full-sized handgun.  \nHis impression was that the Claimant was at maximum medical improvement.  Based on his review \nof the first rating, he wanted to clarify the rating for the cervical spine.  Dr. Baskin stated, “It was \ninitially 9% to the whole person, and in fact, I did not  notice she had a corpectomy as well as a \nsingle-level fusion, which would give her an additional 1% whole person impairment for a total of \n10%.”  He released the Claimant from his care.          \n Dr. Roman authored a clinic note on May 2, 2022.  The Claimant presented to Dr. Roman \na chief complaint of chronic low back pain.  The Claimant had earlier epidural injections in the \npast with good relief.  She reported some occasional pain in the left hip and left leg.  However, the \nClaimant stated that the rhizotomy done in February at L4-L5 and L5-S1 levels provided her with \nthe best pain relief she has had in many years.  The Claimant got 50 to 60% sustained relief, which \nmade a significant impact on her daily activities.  She was still having some pain going down the \nright shoulder and arm, but she did receive some relief with her surgery by Dr. Shahim in October \n2022.    The  Claimant  was  tolerating  things  at  that  point.    Dr.  Roman  did  not  recommend  any \ninterventional procedures.  He continued the Claimant’s medication regimen.         \n Per a clinic note dated May 31, 2022, Dr. Roman opined: \nShe is a Workers’ Compensation patient.    She  injured  her  back.    She  was  given  an \nimpairment rating for single level disc protrusion at the L5-S1 level, which works out to a \n5% whole person rating per page 113, Table 75 of the AMA Guidelines of Disability, the \nFourth Edition as utilized by the State of Arkansas.  I would agree with that assessment. It \nis correlative with her pain and the impairment rating is correct.   \n \nOn July 21, 2020, the Claimant underwent evaluation for her continued chronic back pain  \n \n\nMoody – G409071 \n \n16 \n \nby Dr. Shahim.  The Claimant had worsening acute chronic back pain with intermittent hip and \nleg pain.  Her hip and leg pain were progressively worsening, and unresponsive to conservative \nmanagement.    Dr.  Shahim  gave  the  Claimant  the  option  of  right  L5-S1  spinal  decompression \nsurgery with risk of residual weakness and numbness that may not improve.  Alternative to surgery \nincluded continuing with spinal injections, medications, and physical therapy.  He suggested the \nright  L5-S1  discectomy  since  the  Claimant  recently  failed  medication  activity  modification  and \nradiofrequency.  Dr. Shahim diagnosed the Claimant “low back pain.” \n The Claimant underwent a second lumbar spine surgery on September 6, 2022.  Dr. Shahim \nauthored a surgical report: \nPREOPERATIVE DIAGNOSIS: \nRight L5-S1disc herniation with radiculopathy, unresponsive to conservative management. \n \nPOSTPERATIVE DIAGNOSIS: \nRight L5-S1disc herniation with radiculopathy, unresponsive to conservative management. \n \nOPERATIVE PROCEDURES: \nLumbar microdiscectomy right L5-S1. \n          \n  \n             \n The Claimant underwent follow-up evaluation on September 22, 2022, with Dr. Shahim \ndue to her recent lumbar spine surgery.  His impression was “Status post lumbar decompression \nsurgery.”  The Claimant had moderate disc herniation at L5-S1, but she was doing better.  He had \na discussion with her of the possibility of taking non-steroids, but if her symptoms continued, she \nwould need to take oral steroids.   \n On September 26, 2022, the Claimant saw Dr. Roman stated that the Claimant was healing \nwell from her surgery.  However, the Claimant continued with leg pain that usually disappeared, \nbut  her  back  pain  was  a  little  persistent.  It appears that Dr. Roman continued the Claimant’s \nmedication regimen.  \n\nMoody – G409071 \n \n17 \n \n The  Claimant  continued  to  follow-up  with  Dr.  Roman  for  pain  management  of  her \ncompensable back and neck injuries.  \n On  December  19,  2022  Dr.  Shahim  evaluated  the  Claimant  due  to  her  neck  and  back \nsurgeries.  At that time, he discussed with the Claimant, her lumbar spondylosis degenerative disc \ndisease  and  potential  need  for  further  treatment  including  physical  therapy,  nonsteroid/spinal \ninjections in the future.   His impression was: \nPatient has a worked related injury resulting in cervical and lumbar disc  disease she has \nhad treatments at both levels and is doing failure well but she still has residual symptoms. \nI  have  suggested  she  get  assessed  by  rehab  medicine  for  functional  capacity  long-term \nrestrictions  and  permanent  impairment.    She  is  at  MMI  with  regard  to  her  cervical  and \nlumbar spine at this point, but she probably not quite ready to  return to work because of \npersistent  residual  symptoms.    I  suspect  she  will  need  to  have  therapy  rehabilitation  for \nreturning to work and is likely she will have residual symptoms and may require further \ntreatment in the future...  \n \nThe Claimant saw Dr. Baskin on December 19, 2022.   He stated that the Claimant had  \n \nbeen  rated  by  him  at  10%  for  the  cervical  surgery  and  additional  level.    Per  Dr.  Baskin,  for \nimpairment  purposes  the  Claimant  was  rated  using  the  AMA  Guides  to  the  Evaluation  of \nPermanent Impairment 4\nth\n Edition page 113, table 75.  She was rated under II category E.  This \nwould give her a 10% whole person impairment based on her lumbar spine injury and subsequent \nsurgery. Dr. Baskin specifically noted that this was for a surgically treated disc lesion with residual \nmedically  documented  pain  and  rigidity.    Using  the  combined  values  chart  on  page  322  of  the \nGuides, 10% rating to the cervical spine combined with 10% to her lumbar spine  would yield a \n19% whole person impairment rating.  Her total impairment was 19%.  Dr. Baskin declared the \nClaimant to be at MMI but stated that it was unlikely she would be able to go back to work.  He \nreleased the Claimant to a light duty physical demand category of work with a lifting up to thirty \npounds.  Dr. Baskin also noted that the Claimant did believe she could do that.  He documented \nongoing complaints of stiffness in the neck and lumbar spine, and palpable muscle spasm.           \n\nMoody – G409071 \n \n18 \n \nThe  Claimant  underwent  a  Functional  Capacity  Evaluation  (FCE)  on  January  10,  2023.  \nHer  results  from  this  evaluation  indicated  that  she  put  forth  a  reliable  effort,  with  50  of  52 \nconsistency  measures  with  expected  limits.  The  Claimant  demonstrated  the  ability  to  perform \nwork  with  functional  limitations  of  only  occasionally  lifting  up  to  25  pounds  and  lifting  and \ncarrying of 10 pounds on a frequent basis.   \nOn February 21, 2023, the Claimant saw Dr. Roman for follow-up pain management of her \ncompensable  injuries.    He  specified  that  her  back  surgeries  did  well  overall.    The  back  surgery \nresolved the radicular component. However, the Claimant was having some facet mediated pain \nacross the back, but it was tolerable.  The Claimant had increased her activities as far as her home \nexercise  program,  which  included  proper  stretching  protocol.    She  was  having  a  little  radicular \npain in her trapezial muscle line in her neck.   Dr. Roman noted that the Claimant’s last epidural \ninjection for her neck  was in 2020, but he would reinject her if and when the  intensity gets too \nsevere,  but  at  that  time Claimant  was  tolerating with  medications.    Her  average  pain  was  about \nfive out of 10.  Dr. Roman continued the Claimant’s medication regimen.  His final diagnoses were \n“1.  Cervical radiculopathy, C6-7.  2. Low back  pain.  3. Lumbar disc disease.  4.  Lumbar disc \ndisease.  5. Cervical disc disease.  6. Lumbar spondylosis.  7. Lumbar decompressive surgery, L5-\nS1.  8. Cervical spondylosis.”       \nThe Respondents submitted documentary evidence, which included a Form AR-N.  It was    \non August 21, 2015.  Per this report, the Claimant reported having injured her neck and lumbar \nspine on October 30, 2014.  She was a passenger in the back seat of a car when they were struck \nfrom behind. \nOn May 26, 2022, the Respondents wrote a letter to the Claimant’s attorney informing \nthem that they were accepting the 10% rating. \n\nMoody – G409071 \n \n19 \n \nThe Claimant underwent a Vocational Rehabilitation Initial Evaluation on July 19, 2022.  \nThe vocational rehabilitation consultant performing this evaluation was Keondra Hampton, MS, \nCRC.  Ms. Hampton authored a report summary on July 20, 2022.  The consultant noted that the \nClaimant was not sure she could perform any tasks required of a job.  However, the Claimant was \nagreeable  to  collaborating  with  Ms.  Hampton  in  the  job  search/return-to-work  process  and  was \nopen to exploring any and all opportunities available.  During the meeting,  Ms. Hampton noted \nthat she observed the Claimant using a brace for her right and left wrists. The Claimant reported \nusing  a  compression  sleeve  for  her  right  arm.    Both  devices  were  purchased  at  Walmart.    The \nClaimant  alternated  between  sitting,  standing,  and  walking.    The  Claimant  reported  to  Ms. \nHampton that when she is in pain, she must adjust to different positions for relief.  Her level of \ndaily  activity  was  low  due  to  pain.    The  Claimant  declined  retraining  because  she  is  close  to \nretirement and does not wish to deepen her financial debt.  However, the Claimant did express an \ninterest in seeing what sedentary jobs are available in her area to pursue.  The vocational specialist \ntold  the  Claimant  that  she  would  move  forward  with  the  process  for  finding  a  job  within  the \nClaimant’s restrictions and help with any online job applications.  \nPer  a  report  dated  February  27,  2023,  the  Claimant  visited Ms. Hampton’s office on \nJanuary 18, 2023, for further evaluation and help in the job search process.  Ms. Hampton stated \nthat the Claimant was cooperative with the return-to-work efforts.  The Claimant reported that she \ndid not want to waste Ms. Hampton’s time because she believed she was not capable of returning \nto  work  due  to  the  constant  pain  and  discomfort.    At  that  time,  the  vocational  consultant \nrecommended that the Claimant’s case be closed because she had chosen to discontinue vocational \nrehabilitation services at that time.                     \n                   Adjudication \n\nMoody – G409071 \n \n20 \n \nA. Wage Loss Disability \nHere, the Claimant has asserted her entitlement to wage loss disability over and above her   \ncombined 19% impairment rating for her compensable back and neck injuries of October 30, 2014.   \n            When  considering  claims  for  permanent  partial  disability  benefits  in  excess  of  the \nemployee's   percentage   of   permanent   physical   impairment,   the Workers’  Compensation \nCommission  may  take  into  account,  in  addition  to  the  percentage  of  permanent  physical \nimpairment,  such  factors  as  the  employee's  age,  education,  work  experience,  and  other  matters \nreasonably expected to affect her future earning capacity.  Ark. Code Ann. § 11-9-522(b)(1).  In \nconsidering  factors  that  may  affect  an  employee's  future  earning  capacity,  the  appellate  court \nconsiders the Claimant's motivation to return to work, since a lack of interest or a negative attitude \nimpedes an assessment of the Claimant's loss of earning capacity.  Ellison v. Therma Tru, 71 Ark. \nApp. 410, 30 S.W.3d 769 (2000). \nThe Claimant is 57 years of age.  She worked as a Parole/Probation Officer for ADCC for  \nover fifteen years.  All her primary work experience is in law enforcement.  The Claimant has a \ncollege degree.  On October 30, 2014, the Claimant sustained significant injuries to her neck and \nback in a work-related MVA.  She was a passenger in the back seat of a vehicle when they were \nrear-ended  by  another  vehicle.    Subsequently,  the  Claimant  underwent  substantial  conservative \nmedical treatment for her injuries, including various medications, physical therapy, and epidural \nsteroid injections.  The Claimant has treated and been evaluated by several specialists, including \nDrs. Rosenzweig, Shahim, Baskin, and Roman. \nOn October 26, 2021, the Claimant underwent a C6-C7 anterior cervical discectomy and \nfusion, with partial C5 corpectomy.  Dr. Shahim performed this surgery.  Following her surgery, \nthe Claimant underwent physical therapy and continues on a pain medication regimen.  She has \n\nMoody – G409071 \n \n21 \n \nmedically documented problems with her right arm and wears a brace occasionally.  The Claimant \nalso has restricted range of motion in her neck that affects her ability to drive.     \n For  her  back  injury,  the  Claimant  underwent  physical  therapy  and  injections  with  little \nrelief of her symptoms.  On September 6, 2022, Dr. Shahim performed decompressive surgery at \nthe L5-S1 level.  The Claimant did well with her surgery but continued to have leg pain.      \n On December 19, 2022 Dr. Baskin assessed the Claimant with a combined value rating of \n19% for neck and back injuries of October 2014.  The Respondents have accepted this rating.  Dr. \nBaskin placed the Claimant to be at MMI for her cervical spine and lumbar spine injuries.  The \nClaimant continues to see Dr. Roman for pain management of her injuries.         \n The Claimant testified that she is significantly limited in her daily activities of living due \nto her neck and back injuries of October 30, 2014.  I found the Claimant to be very credible.  Her \nhusband does all of the cooking.  She is no longer able to engage in her prior hobbies, including \nwalking, bike riding, and basketball.  The Claimant takes several medications for her compensable \ninjuries as outlined above.  One of her medications causes her to have some memory loss.  The \nClaimant underwent an FCE with reliable results on January 10, 2023.  She has the physical ability \nto  perform  light  duty  work.    She  can  no  longer  work  in  law  enforcement  due  to  her  physical \nrestrictions and limitations.   \nThe Claimant worked for the Arkansas Department of Community Correction seven years \nafter her accident in October 2014.  However, ADCC ultimately had to fire the Claimant due to \nher physical restrictions resulting from her October 2014 work injury.  Her hourly rate of pay was \n$22.50.  She has looked for work within her restrictions at DHS, with the Division of Children and \nFamily Services.  These positions have a salary range of $9.00 to $11.00 an hour.                      \n\nMoody – G409071 \n \n22 \n \n Based on my review of the evidence, including the Claimant’s credible testimony, and \nwhen   considering   her   advanced   age,   education,   prior   work   experience   primarily   in   law \nenforcement,  the  nature  and  extent  of  her  injuries,  the  combined  value  of  a  19%  permanent \nanatomical  impairment  to  the  body  as  a  whole  for  her  back  and  neck  injuries,  her  restricted \nactivities of daily living, her ability to perform only light duty work, considering the fact that she \nwill not be able to return to work in law enforcement, and all other relevant  matters reasonably \nexpected  to  affect  her  future  earning  capacity,  I  find  that  the  Claimant  has  proven  by  a \npreponderance of the evidence that she sustained a 24%  wage-loss earning capacity in excess of \nher combined 19% permanent anatomical impairment to the body as a whole for her compensable \nback and neck injuries of October 30, 2014.        \nB. Controverted Attorney’s Fee \nIt is undisputed that the Respondents have controverted this claim for additional benefits as \nevidenced by their stipulation to conversion.  Therefore, pursuant to Ark. Code Ann. §11-9-715 \n(Repl. 2012), the Claimant’s attorney is entitled to a controverted attorney’s fee on all indemnity \nbenefits awarded herein.  \nAWARD \nThe Respondents are directed to pay benefits in  accordance with the  findings of fact set \nforth herein this Opinion.  \nAll accrued sums shall be paid in lump sum without discount, and this  award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. §11-9-809 (Repl. 2012).   See Couch \nv. First State Bank of Newport, 49 Ark. App. 102, 898 S.W. 2d 57 (1995).  \n\nMoody – G409071 \n \n23 \n \nPursuant to Ark. Code Ann. §11-9-715 (Repl. 2012), the Claimant's attorney is entitled to \na 25% attorney's fee on the indemnity benefits awarded herein.  This fee is to be paid one-half by \nthe carrier and one-half by the Claimant.  \nAll  issues  not  addressed  herein  are  expressly  reserved  under  the Arkansas  Workers’ \nCompensation Act. \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          HON. CHANDRA L. BLACK \n                 ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: G409071 RUBY MOODY, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF COMMUNITY CORRECTION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/THIRD PARTY ADMINSTRATOR (TPA) RESPONDENT OPINION FILED JUNE 23, 2023 Hearing held before ADMINISTRATIVE LAW J U...","fetched_at":"2026-05-19T23:06:44.516Z","links":{"html":"/opinions/alj-G409071-2023-06-23","pdf":"https://labor.arkansas.gov/wp-content/uploads/MOODY_RUBY_G409071_20230623.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}