{"id":"alj-G506221-2023-11-29","awcc_number":"G506221","decision_date":"2023-11-29","opinion_type":"alj","claimant_name":"Roger Grubbs","employer_name":null,"title":"GRUBBS VS.SOUTHERN PERSONNEL MANAGEMENT, INC. AWCC# G506221 NOVEMBER 29, 2023","outcome":"granted","outcome_keywords":["granted:5"],"injury_keywords":["cervical","thoracic","lumbar","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/GRUBBS_ROGER_G506221_20231129.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRUBBS_ROGER_G506221_20231129.pdf","text_length":17262,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G506221 \n \nROGER GRUBBS, Employee                                                                          CLAIMANT \n \nSOUTHERN PERSONNEL MANAGEMENT, INC.,                             RESPONDENT #1 \nDBA CABINET SHOP \n \nAMTRUST NORTH AMERICA Carrier/TPA                                         RESPONDENT #1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND              RESPONDENT #2 \n                                                                                                  \n \n \n OPINION FILED NOVEMBER 29, 2023 \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 WILLIAM C. FRYE, Attorney, Little Rock, Arkansas. \n \nRespondent #2 represented by DAVID L. PAKE, Attorney, Little Rock, Arkansas; \nalthough not participating in hearing. \n \n \n STATEMENT OF THE CASE \n  \n On November 13, 2023, the above captioned claim came on for hearing at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on March 1, 2023 and a pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’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 prior opinions in this matter are final. \n\nGrubbs – G506221 \n \n2 \n \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Temporary total disability benefits from September 13, 2022 through a date  \nyet to be determined. \n2.     Additional medical treatment, including SI joint surgery recommended by Dr.  \nBlankenship. \n3.  Attorney fee. \nThe  claimant  contends  that  his  authorized  treating  physician  is  recommending \nadditional treatment and has opined that as of September 12, 2022 the claimant remained \nunable to work.  Dr. Blankenship has not released the claimant to return to work pending \nthe claimant’s receipt of recommended medical treatment.  The claimant contends that \nthe SI joint surgery recommended by Dr. Blankenship is reasonably necessary treatment \nin view of the fact that Dr. Blankenship and Dr. Cannon have both utilized conservative \nmodalities that have not adequately addressed the claimant’s significant and ongoing \nproblems.  Claimant contends his attorney is entitled to an attorney’s fee on all indemnity \nbenefits owed to claimant. \nRespondent #1 contends that claimant is not entitled to any additional benefits. \nRespondent #2 defers to the outcome of litigation and waives its right to attend the \nhearing. \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\nGrubbs – G506221 \n \n3 \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 March 1, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to additional medical treatment, including SI joint surgery recommended \nby Dr. Blankenship.     \n 3.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to temporary total disability benefits beginning September 13, 2022 and \ncontinuing through a date yet to be determined. \n 4.      Respondent  has  controverted  claimant’s  entitlement  to  all  unpaid  indemnity \nbenefits. \n \n \n FACTUAL BACKGROUND \n The  claimant  has  worked  for  the  owners  of  the  Cabinet  Shop  since  1975, \nperforming  carpentry  work.    While  working  for  respondent  claimant  suffered  two \ncompensable injuries as a result of motor vehicle accidents.  The second motor vehicle \naccident occurred on August 7, 2015, and is the subject of this particular claim. \n Following  a  hearing  on  January  29,  2018,  an  opinion  was  filed  on  February  28, \n2018  by  this  administrative  law  judge  finding  that  claimant  had  proven  a  compensable \ninjury  to  his  cervical,  thoracic  and  lumbar  spine  on  August  7,  2015.    In  that  opinion \nclaimant was awarded additional medical treatment recommended by Dr. Blankenship.  \nThat decision was appealed to the Full Commission which in an opinion filed August 1, \n\nGrubbs – G506221 \n \n4 \n \n2018  affirmed  the  finding  of  compensability  and  award of  medical  treatment  by  Dr. \nBlankenship.    Dr.  Blankenship performed  surgery  in  the  form of  a  fusion  on  claimant’s \nlumbar spine on April 9, 2020 and assigned claimant an impairment rating in an amount \nequal to 12% to the body as a whole as a result of that injury. \n A second hearing on this claim was conducted on May 3, 2021, and in an opinion \nfiled  June  10,  2021  this  administrative  law  judge  found  that  claimant  was  entitled  to \nadditional permanent partial disability benefits in an amount equal to 30% to the body as \na result of his August 7, 2015 compensable injury.  That opinion was not appealed and \nthe parties have stipulated that all prior opinions are final. \n Since  the  time  of  the  last  hearing  claimant  has  continued  to  treat  with  Dr. \nBlankenship for spinal complaints.  In a report dated May 6, 2021, Dr. Blankenship noted \nthat claimant was having some low back pain on his lefthand side.  He stated that an SI \njoint examination was positive in all five testings.  Dr. Blankenship further stated that it \nwas not uncommon for someone who had undergone lumbar arthrodesis to have SI joint \npain.    It  was  his  opinion  that  claimant  needed  additional  medical  treatment  for  this \ncondition and he referred claimant to Dr. Cannon for a left SI joint injection. \n Claimant returned on August 19, 2021 to Dr. Blankenship following the injection.  \nDr.  Blankenship’s  report  indicated  that  claimant  achieved  70%  relief  as  a  result  of  the \ninjection and he recommended that claimant continue home exercises and return in eight \nweeks.   \n Claimant  returned  to  Dr.  Blankenship  on  September  2,  2021,  indicating  that  his \nlow back and left buttock pain had gotten significantly worse over the last couple of weeks.  \nBased upon claimant’s failure to respond to exercise and the injection, Dr. Blankenship  \n\nGrubbs – G506221 \n \n5 \n \nrecommended a left SI joint arthrodesis.  Dr. Blankenship indicated that the arthrodesis \nwas  directly  related  to  claimant’s  lumbar  stabilization  which  was  necessitated  by \nclaimant’s work-related injury. \n Respondent  did  not  approve  the  surgical  procedure  by  Dr.  Blankenship,  but \ninstead sent claimant for an evaluation by Dr. Tomecek.  Dr. Tomecek in a report dated \nDecember 1, 2021 recommended further diagnostic testing in the form of a thoracic and \nlumbar myelogram CT scan.  He also indicated that if claimant did have SI joint pathology, \nhe would recommend more physical therapy and an additional injection before surgery.  \nHowever,  it  was  his  opinion  that  absent  additional  diagnostic  testing  there  was  no \ndefinitive diagnosis. \n Claimant underwent the myelogram CT scan of his thoracic and lumbar spine and \nreturned to Dr. Tomecek on January 17, 2022.  Dr. Tomecek noted that there was some \nerosion around the anterior cages and around the sacral screws.  It was also his opinion \nthat claimant had an autofusion of the left sacroiliac joint with a large osteophyte on the \nsacroiliac joint.  Accordingly, he did not agree with Dr. Blankenship’s recommendation, \nbut instead recommended non-operative treatment which would include an injection and \nreferral to surgery for removal of the large osteophyte. \n Shortly  after  this  evaluation  by  Dr.  Tomecek,  claimant  again  returned  to  Dr. \nBlankenship.  Claimant testified that prior to this visit he stretched his left leg, it popped \nand as a result, his SI joint pain resolved.  Dr. Blankenship’s report of February 21, 2022 \nindicates that claimant informed him that  his SI joint pain had completely resolved and \nwas no longer hurting.  As a result, Dr. Blankenship no longer recommended surgery but \ninstead indicated that claimant had reached surgical MMI.   \n\nGrubbs – G506221 \n \n6 \n \n Claimant returned to Dr. Blankenship on September 12, 2022 indicating that his \npain  had  significantly  worsened.    Dr.  Blankenship’s  report  of  that  date    indicates  that \nclaimant rated his pain as 100% of the worst pain imaginable.  Dr. Blankenship indicated \nthat his SI joint exam again revealed 5 of 5 positive findings and he again sent claimant \nto Dr. Cannon for a left SI joint injection.   \n This injection was performed by Dr. Cannon on November 14, 2022, and claimant \nreturned  to  Dr.  Blankenship  on  December  8,  2022.    Dr.  Blankenship  indicated  that \nclaimant  obtained  some  relief  from  the  injection,  but  it  was  temporary  in  nature.    Dr. \nBlankenship opined that another injection was unlikely to provide any long term benefits \nand as a result, he recommended that claimant proceed with a left SI joint arthrodesis. \n Claimant was again seen by Dr. Tomecek on May 4, 2023, and again Dr. Tomecek \ndisagreed  with  the  surgical  procedure  recommended  by  Dr.  Blankenship.    Finally,  in  a \nreport dated August 10, 2023, Dr. Blankenship again noted that claimant’s SI joint exam \nwas positive and stated that there was no question that claimant had SI pathology that \nwas causing his pain and he again recommended the SI joint arthrodesis. \n Claimant  has  filed  this  claim  contending  that  the  surgery  proposed  by  Dr. \nBlankenship is reasonable and necessary medical treatment for his compensable injury.  \nHe  also  seeks payment of temporary  total disability  benefits  from September 13, 2022 \nthrough a date yet to be determined. \n  \nADJUDICATION \n Claimant  has  the  burden  of  proving  by  a  preponderance  of  the  evidence  that \nmedical treatment is reasonably necessary.  Stone v. Dollar General Stores, 91 Ark. App. \n\nGrubbs – G506221 \n \n7 \n \n260, 209 S.W. 3d 445 (2005).  What constitutes reasonably necessary medical treatment \nis a question of fact for the Commission.  Wright Contracting Company v. Randall, 12 Ark. \nApp. 358, 676 S.W. 2d 750 (1984). \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  met  his  burden  of  proving  by a \npreponderance  of  the  evidence  that  he  is  entitled  to  additional  medical  treatment, \nincluding SI joint surgery as recommended by Dr. Blankenship. \n It is clear from a review of the reports from Dr. Blankenship and Dr. Tomecek that \nthey  have  totally  different  views  of  the  source  of  claimant’s  complaints  as  well  as  the \nrecommended  treatment.    Dr.  Blankenship’s  opinion  is  based  upon  his  physical \nexamination of the claimant as well as claimant’s response to injections provided by Dr. \nCannon.  On the other hand, Dr. Tomecek’s opinion is primarily based upon a myelogram \nCT  scan  which  he  ordered  and  reviewed.    Based  upon  his  reading  of  that  test,  Dr. \nTomecek is of the opinion that claimant already has an autofusion of his SI joint; therefore, \nsurgery on the SI joint is not recommended. \n I  find  that  the  opinion  of  Dr.  Blankenship  is  entitled  to  greater  weight  than  the \nopinion  of  Dr.  Tomecek  under  the  circumstances.  While  Dr.  Tomecek  has  seen  the \nclaimant on three different occasions, Dr. Blankenship has seen the claimant on multiple \noccasions  and  he  previously  performed  surgery  on  claimant’s  lumbar  spine  in  2020.   \nSince that time, he has continued to treat claimant for various spinal ailments and he has \nnow recommended an SI joint fusion.  Under these circumstances, I find that the opinion \nof  Dr.  Blankenship  is  entitled  to  greater  weight  and  based  upon  his  opinion  I  find  that \nclaimant has met his burden of proving by a preponderance of the evidence that he is \n\nGrubbs – G506221 \n \n8 \n \nentitled  to  additional  medical  treatment  for  his  compensable  injury.    This  treatment \nincludes the SI joint surgery recommended by Dr. Blankenship. \n In  reaching  this  decision,  I  note  that  Dr.  Blankenship  has  opined  that  Dr. \nTomecek’s opinion regarding any of Dr. Blankenship’s patients are invalid because Dr. \nTomecek previously testified in a malpractice claim against Dr. Blankenship.  According \nto  Dr.  Blankenship,  Dr.  Tomecek  was  subsequently  censored  by  a  neurological \nassociation for that testimony.  I do not find any of these accusations to be controlling in \nthis particular case.  Instead, my decision regarding Dr. Blankenship’s opinion is based \nupon  the  fact  that  he has been  claimant’s  treating physician  for  several  years  and  has \npreviously performed surgery on claimant’s lumbar spine.   \n I also find that claimant has met his burden of proving by a preponderance of the \nevidence  that  he  is  entitled  to  additional  temporary  total  disability  benefits  beginning \nSeptember 13, 2022 and continuing through a date yet to be determined.  In order to be \nentitled  to  temporary  total  disability  benefits,  claimant  has  the  burden  of  proving  by  a \npreponderance  of  the  evidence  that  he  remains  within  his  healing  period  and  that  he \nsuffers a total incapacity to earn wages.  Arkansas State Highway & Transportation Dept. \nv. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981).  \n Based  upon  Dr.  Blankenship’s  opinion,  I  note  that  claimant  remains  within  his \nhealing  period  based  upon  his  recommendation  for  surgery.    In  fact, even  though  Dr. \nTomecek  disagrees  with  Dr.  Blankenship’s  recommendation  for  surgery,  Dr.  Tomecek \nalso indicated that claimant was in need of additional medical treatment.  Accordingly, I \nfind that claimant has remained within his healing period. \n I also find that claimant has suffered a total incapacity to earn wages.  Claimant \n\nGrubbs – G506221 \n \n9 \n \nwas  seen  by  Dr.  Blankenship  on  September  12,  2022,  at  which  time  Dr.  Blankenship \nrecommended that claimant return to Dr. Cannon for a left SI joint injection.  In a work \nnote dated September 21, 2022, Dr. Blankenship noted that claimant had been treated \non September 12, 2022 and stated: \n  Patient will need to remain off work until after recommended \n  injections and patient has followed up. \n \n \n Claimant did undergo the injection which provided only temporary relief and as a \nresult  Dr.  Blankenship has  now  recommended  the  SI  joint  fusion.    Based  upon  this \nevidence, I find that claimant has suffered a total incapacity to earn wages since the day \nafter his evaluation by Dr. Blankenship on September 12, 2022. \n Accordingly,  I  find  that  claimant  is  entitled  to  temporary  total  disability  benefits \nbeginning September 13, 2022 and continuing through a date yet to be determined.  I do \nnote that at the hearing there was some discussion that respondent paid some additional \ntemporary  total  disability  benefits  subsequent  to  September  13,  2022.    Obviously, \nrespondent  would be entitled  to  a  credit  for any  temporary  total  disability  benefits  paid \nafter that date. \n      \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe is entitled to additional medical treatment for his compensable injury.  This includes \nthe  recommended  surgery  by  Dr.  Blankenship.    Claimant  is  also  entitled  to  temporary \ntotal disability benefits beginning September 13, 2022 and continuing through a date yet \nto  be  determined.    Respondent  is  entitled  to  a  credit  for  any  temporary total  disability \n\nGrubbs – G506221 \n \n10 \n \nbenefits   paid   subsequent   to   that   date.   Respondent   has   controverted   claimant’s \nentitlement to any unpaid indemnity benefits. \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.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \nRespondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $335.80. \nAll sums herein accrued are payable in a lump sum and without discount. \nIT IS SO ORDERED. \n \n    _______________________________________ \n     GREGORY K. STEWART \n     ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G506221 ROGER GRUBBS, Employee CLAIMANT SOUTHERN PERSONNEL MANAGEMENT, INC., RESPONDENT #1 DBA CABINET SHOP AMTRUST NORTH AMERICA Carrier/TPA RESPONDENT #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED NOVEMBER 29, 2023 Hearing b...","fetched_at":"2026-05-19T23:00:56.825Z","links":{"html":"/opinions/alj-G506221-2023-11-29","pdf":"https://labor.arkansas.gov/wp-content/uploads/GRUBBS_ROGER_G506221_20231129.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}