{"id":"alj-G506453-2023-06-20","awcc_number":"G506453","decision_date":"2023-06-20","opinion_type":"alj","claimant_name":"Kenneth Johnson","employer_name":"Land O’frost","title":"JOHNSON VS. LAND O’FROST AWCC# G506453 JUNE 20, 2023","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["back","hip","neck","shoulder","cervical","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//JOHNSON_KENNETH_G506453_20230620.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_KENNETH_G506453_20230620.pdf","text_length":45943,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G506453 \n \nKENNETH A. JOHNSON, EMPLOYEE         CLAIMANT \n \nVS. \n \nLAND O’FROST, EMPLOYER                 RESPONDENT \n \nLAND O’FROST, INC. CARRIER \nPMA MANAGEMENT CORP, TPA            RESPONDENT \n \nOPINION FILED JUNE 20, 2023 \n \nHearing  before  Administrative  Law  Judge,  James  D.  Kennedy, on  the  9\nTH\n day  of May, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant  is  represented  by  Mr.  Andy L.  Caldwell,  Attorney-at-Law, of  Little  Rock, \nArkansas. \n \nRespondents are represented by  Mr. Guy Alton Wade, Attorney-at-Law, of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on the 9\nth\n day of May, 2023.  At the time of the hearing, \nthe issues were clarified by the parties and it was agreed that the issues to be litigated at \nthe time of the hearing were as follows: (1)  compensability of an injury to the claimant’s \nback and the related medical, and whether the claimant is entitled to PPD in regard to the \nback injury;  (2)  compensability of an injury to the claimant’s head and related medical;  \n(3)    the  issue  of  permanent  partial  disability  or,  in  the  alternative,  wage-loss;  and  (5) \nattorney’s fees.  All other issues were reserved. The respondents contend the claimant \ndid not sustain a compensable back injury and that there were no objective findings in \nregard to a back injury.  Dr. Seale provided a zero percent (0%) rating for PPD in regard \nto the claimed back injury.  In regard to the claimed head injury, the respondents contend \nthat the claimant did not sustain a compensable head injury and there were no objective \n\nJOHNSON – G506453 \n \n2 \n \nfindings  in  regard  to  this  injury.  The  respondents  also  contended  that  the  claimant’s \ninability  to  work,  if  applicable, was  related  to  conditions  that  the  respondents were  not \nresponsible for; that the claimant is not P&T; and that he is not entitled to wage-loss or \nany other impairment. \nA Prehearing Order dated March 13, 2023, provided that the parties stipulated that \nthe Arkansas Workers’ Compensation Commission had jurisdiction of the within claim and \nthat an employer/employee/carrier relationship existed on or about August 21, 2015, and \nat all relevant times thereto.  Additionally, it was stipulated that the claimant sustained a \ncompensable right hip and neck injury.  It was also stipulated that the claimant earned \nsufficient  wages  for  temporary  total  disability  /  permanent  partial  disability  rates  of \n$629.00 / $472.00, respectively.  Finally, the parties agreed that the claimant received an \neleven percent (11%) permanent partial disability rating to the body as a whole by Doctor \nSeale, which was accepted and paid.        \n The Prehearing Order and the claimant’s contentions and amended contentions, \nas well as the respondent’s contentions were all set out in their respective responses to \nthe  prehearing  questionnaire  and  made  a  part  of  the  record  without  objection.    The \nwitnesses were Kenneth Johnson, the claimant, along with his wife Patricia Johnson, and \nTeddy  Townsend,  the  environmental  and  safety  coordinator  for  the  employer.  From  a \nreview  of  the  record  as  a  whole,  to  include medical  reports and other matters properly \nbefore  the  Commission,  and  having  had  an  opportunity  to  observe the  testimony  and \ndemeanor of the witnesses, the following findings of fact and conclusions of law are made \nin accordance with Arkansas Code Annotated § 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n\nJOHNSON – G506453 \n \n3 \n \n1.   The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  That an employer/employee relationship existed on August 21, 2015, the date \nof  the  claimed  injuries.  At  the  time,  the  claimant  earned  an  average  weekly \nwage  sufficient  for  TTD  /  PPD  rates  of  $629.00  /  $427.00,  respectively,  per \nweek. \n \n3.  That the claimant sustained a compensable right hip and neck injury on August \n21, 2015, which was accepted by the respondents. \n \n4.  The claimant received an eleven percent (11%) disability rating to the body as \na whole in regard to his neck injury, which has been paid in full. \n      \n5. That the claimant has failed to satisfy the required burden of proof to show that \nhe  sustained a  compensable  work-related  injury  to  his  back  and  head on \nAugust 21, 2015, and consequently the claims for medical, as well as PPD in \nregard to the back injury, are moot. \n \n6.  The claimant has failed to satisfy the required burden of proof that he is entitled \nto permanent and total disability and, in the alternative, has also failed to satisfy \nthe required burden of proof for wage-loss. \n \n7.  The issue of attorney fees is moot. \n   \n8.  That all other issues are reserved. \n \n9.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The Prehearing Order along with the responses to the prehearing questionnaires \nand amended response of the claimant were admitted into the record without objection.  \nThe claimant submitted three (3) exhibits that were admitted without objection: (1) 111 \npages  of medical  reports;  (2)   21   pages  consisting of the  payroll register, emails,  and \npayments; and (3) 38 pages of correspondence and payroll records.  The respondents \nalso submitted three (3) exhibits that were submitted without objection: (1) 43 pages of \n\nJOHNSON – G506453 \n \n4 \n \nmedical reports; (2)  The AR - C Form and correspondence; and (3) 1 page consisting of \nthe Wade letter. \n The claimant testified that he was born on July 11, 1948,  was driving a truck for \nthe respondent on August 21, 2015, and had been employed with them for eleven (11) or \ntwelve (12) years.  While working for the respondent, he fell approximately 20 or 25 feet \nfrom  the  “bubble  of  the  truck”  attempting  to  remove  the  antenna  from  the truck.    He \ntestified when he hit, he injured his ear, head, and neck.  His ear and right posterior head \nwas lacerated, and the insurance girl took him to Dr. Warnock.  He returned to the doctor \nthe next day complaining of headaches and pain in his ear.  He had an open wound in \nregard   to    his  right  ear,  a  shoulder  bruise, and a  contusion  on his  right  buttock and a \nbruise on his right hip.  The claimant agreed he had a burning sensation in his right ear \nand consequently could not wear his glasses.  He denied having headaches or mental \nstatus problems prior to the fall. (Tr.p. 17-22) \n The claimant admitted having problems with his memory and confusion after the \nfall and stated it had gotten worse.  The claimant stated he was having visual changes, \nlow  back  pain,  and  numbness  after  he  sat  for  a  while.    He  agreed  that  when  taking  a \nshower and closing his eyes, he would lose his balance and needed balance training and \nthat he had pain shooting down his left neck and into his head, along with pain in his lower \nback and into his right leg while  attending physical therapy in November of 2015.  The \nclaimant also agreed he had neck pain on the left side with mid-back pain and was treated \nwith  Tramadol.  (Tr.p.  23-27)   The  claimant  testified  that  he  returned  to  Dr.  Warnock \nmultiple times and that his right ear still hurt.  He felt that at night his pain sometimes got \nso bad that he cried.  The claimant was referred to Dr. Seale while he was still having \n\nJOHNSON – G506453 \n \n5 \n \nneck and back pain, with pain radiating down the left shoulder and left arm.  Additionally, \npain was radiating down his left buttock and leg.   Dr. Seale performed a cervical fusion \non his neck and released him to return to work.  The claimant returned to the respondent \nand performed the same job for about a year.  He quit working for the respondent due to \nthe pain returning.  He had problems navigating the truck where the road had changed \nand had difficulty backing the trailer.  The claimant was sent to Dr. Dan Johnson, a clinical \nneuropsychologist, by the respondent.   He had not returned to work since Dr. Johnson \nissued his report.  He testified he had problems with his back and his mobility and difficulty \nturning  to  the  left  along  with  neck  problems and left  leg  problems  similar  to  when  the \naccident first happened.  The claimant denied being seen by a psychiatrist but agreed he \nwas still having memory problems. (Tr.p. 28-34) \n Under cross-examination, the claimant agreed he was sixty-seven (67) years old \nat the time of the accident and was on social security retirement since the age of sixty-six \n(66), and still had his CDL for local driving.  He also agreed the last doctor who treated \nhim  for  his  injuries  was  Dr.  Baskin.    He  currently  had  been  treated  by  the  VA  for  high \ncholesterol,  diabetes,  blood  work,  and  they  had  also  provided  a  depression  pill.    He \nagreed that after the injury, he had been released by Dr. Seale to full duty in March of \n2016, and had team driven.  He also had passed a DOT physical after the accident.  He \nalso agreed that  Dr. Seale  had given  him an  impairment  rating  after  his  surgery  which \nhad been paid.  He passed another DOT physical in July of 2018, and drove 55,036 miles \nin 2018 and 77,975 miles in 2019, which was three or four years after the accident and \nwould drive to the west coast.  He also agreed he received a short-term disability payment \n\nJOHNSON – G506453 \n \n6 \n \nfrom  a  policy  he  had  provided.    Additionally,  no  one  had  recommended  any  additional \nmedical care in relation to his work injury. (Tr.p. 35–41)  \n He had a CT scan and an MRI of his brain.  The claimant was not aware that Dr. \nWarnock had opined his mental status change had resolved.  He agreed that Dr. Seale \nhad given him a zero percent (0%) impairment rating for his back.  He also agreed after \nhis neck surgery, he received a percentage rating for his neck.   The claimant admitted \nthat he was seventy-one (71) at the time of the evaluation by Dr. Johnston and that he \nsaw Dr. Baskin once. (Tr.p. 42–46)  The claimant also testified he had not looked for any \nwork after he left the respondent, but had received his social security. (Tr.p. 47-48) \n On redirect, the claimant agreed he would have continued to work if he had not \nbeen taken off work By Dr. Baskin.  The claimant also agreed Dr. Baskin was not treating \nhim  and  no  physician/patient  relationship  had  been  established.  (Tr.p.  48-49)  The \nclaimant admitted that after the surgery by Dr. Seale, and after being released by him, he \nstarted treating him again and that he opined the patient had no history of pain in the low \nback or down the leg prior to his work injury, and therefore, “It is within a certain degree \nof  medical  certainty  that  at  least  fifty-one  (51%)  of  the  patient’s  current  symptoms  and \nneed  for  surgery  are  directly  related  to  the  injury.”  (Tr.p.  50)    On  recross,  the  claimant \nagreed that Dr. Seale was referring to the neck. (Tr. 51) \n The  claimant  then  called  Patricia  Johnson,  his  wife,  who  testified  that  they had \nbeen together forty (40) years and she was aware of his injury on the date that it occurred.  \nShe testified that the claimant complained of his head, ear, neck, back, and hip hurting.  \nHe had not complained of headaches prior to the accident and she was not aware of him \n\nJOHNSON – G506453 \n \n7 \n \nseeking treatment for back or neck pain and not aware of the claimant having issues prior \nto the accident.  She stated he was a different man now. (Tr.p. 54-58)  \n Under cross-examination, Ms. Johnson agreed the claimant had worked the same \ntype of schedule as before the accident, and that when he returned to driving, it sounded \ncorrect that he drove about 62,323 miles. (Tr.p. 59-60) \n Teddy Townsend was called by the respondent after an objection by the claimant \nat the start of the hearing.  He testified that he was an environmental health and safety \ncoordinator,  that  he  monitors  workers’  compensation  claims,  and  was  familiar  with  the \nclaimant.  He testified that the top of the truck was only about twelve (12)  to thirteen (13) \nfeet because you can’t get under an overpass at twenty (20) feet.  The claim for the neck \nand hips was accepted as compensable.  He was also aware that after the treatment by \nDr. Warnock, the claimant returned to work and was assigned to team driving and had a \nDOT physical in March of 2016.  He ended up having neck surgery by Dr. Seale who then \nreleased  him  and  he  returned  to  work,  driving  long-haul.    After  being  released  by  Dr. \nSeale, the claimant was required to have another physical and drug screen because he \nhad been out so long, which he passed successfully, and he then went out on the road \nagain.  He testified that the claimant drove a little over 55,000 miles in 2018, and 77,975 \nmiles in 2019.  He also agreed that the claimant received short-term disability which was \npaid for by the respondent for about six (6) months.  After the report by Dr. Johnston, the \nclaimant was not allowed to return to work and that was when he received the short-term \ndisability. (Tr.p.64-69) \n Under  cross-examination,  Mr.  Townsend  testified  he  had  no  knowledge  of  the \nclaimant ever being reprimanded for disorientation or backing into trucks or trailers and \n\nJOHNSON – G506453 \n \n8 \n \nhe was not aware of any complaints from his  team driver.  He saw the claimant on the \nday  of  his  injury  and  had  no  reason  to  dispute  the  medical  records  that  provided  the \nclaimant had a right ear and head laceration and also that the claimant was complaining \nof memory loss, dizziness, and confusion.  He was not aware of any of these complaints \nprior to the work injury.  He also agreed the claimant indicated that he wanted to return to \nwork. (Tr.p. 70-71) \n Under redirect, Mr. Townsend stated he would not have allowed the claimant to \nreturn to driving if he had suspected a cognitive deficit or brain injury, nor did he suspect \none in 2016, 2017, 2018, or 2019.  He also agreed that the claimant had passed two (2) \nDOT physicals during that time, and that if he had complained to the physician performing \nthe DOT physical, he would not have passed. (Tr.p. 72-73)     \n           In  regard  to  medical  records,  the  claimant  presented  to  PrimeCare  Medical  & \nWellness  Clinic  and  was  seen  by  Dr.  Wornock  on  the  day  of  the  accident,  August  21, \n2015, and then returned on August 22, 25, 28, in 2015.  The assessment on August 21 \nprovided for an open wound of the ear which was closed with stiches and a head injury.  \nOn the August 22, 2015, visit, the report provided the ear looked good, with a bruise over \nthe right deltoid, no bruise over the buttocks, and with a good range of motion of the hip \nand shoulder.  A head injury was mentioned under  the chief complaint.  On August 25, \n2015, the claimant mentioned numbness of the right hip.  On the August 28 follow-up, the \nreport provided for a mental status change and a CT scan was recommended. (Cl. Ex. 1, \nP.1-  8)  The CT scan of the brain on August 28, 2015, provided for a negative scan of the \nbrain, and showed left maxillary sinusitis. (Cl. Ex. 1, P. 9)  The claimant returned to Dr. \nWornock on September 1, 2015, and the report provided that the mental status change \n\nJOHNSON – G506453 \n \n9 \n \nwas  now  resolved.  (Cl.Ex.1,  P.10-11)  The  next  visit  to  Dr.  Wornock  occurred  on \nNovember 20, 2015, for a follow-up.  The report provided that the sixty-seven (67) year \nold claimant was suffering from visual changes and that his legs go numb when he tries \nto sit, that he has a hard time starting to walk, and if he closed his eyes while showering, \nhe  lost  his  balance.  He  was  assessed  with  bilateral  low  back  pain  without  sciatica, \nblepharitis (inflammation of the eyelids) on the right, and cervicalgia.  (Cl.Ex.1, P. 11-12) \n The claimant then made multiple visits to Reaper Physical Therapy from November \n23,  2015,  through  December  29,  2015.  (Cl.Ex.1,  P.13-15)    He  then  returned  to  Dr. \nWornock on January 8, 2016,  and the report provided there had been an improvement \nand the claimant felt great while in physical therapy, but that pain comes and goes at the \nbase of his neck on the left side, mild back pain, and that he suffered headaches like his \nhead was blowing off, along with white spots on the right ear.  His neck range of motion \nwas pretty good but he suffered a lot of pain when he turned his head to the left.  He was \nagain diagnosed with cervicalgia and was referred to Dr. Sprinkle  in regard to returning \nto work.  The report also provided if the claimant received clearance, he would be referred \nto Serena McKnight for cognitive testing. (Cl.Ex.1, P. 16-17)  The claimant returned to Dr. \nWornock on January 26, 2016, with the complaint of pain on the left side of his neck with \nradiation of the pain to the left shoulder, with the pain sometimes being sufficient to make \nhim cry.  The claimant was also advised not to drive. (Cl.Ex.1, P. 18-20)  The claimant \nreturned  to  Dr. Wornock  on  February  2,  2016,  who  again  diagnosed  cervicalgia  with a \nlimited  range  of  motion  and  again  stated  that  the  claimant  could  not  drive  and  that  he \nwould be seeing a specialist. (Cl.Ex.1, P. 20-24)  \n\nJOHNSON – G506453 \n \n10 \n \n On  March  7,  2016,  the  claimant  presented  to  Dr.  Seale  at  Arkansas  Specialty \nOrthopedics.  The report provided the claimant had sixteen (16) visits of physical therapy, \nhad full range of motion without pain or tenderness of the lumbar spine, and his bilateral \nshoulders showed a full range of motion.  He had a limited range of motion to the left in \nhis cervical spine.  The claimant suffered from degenerative disc disease of the C5-6 with \nleft sided pain to the shoulder along with L5-S1 severe degenerative disc disease with \nback pain and bilateral leg pain.  The report allowed the claimant to return to commercial \ndriving  with  no  restrictions.  An  X-ray  of  the  cervical  spine  provided  for  moderate  disc \nspace narrowing and a view of the lumbar spine revealed severe disc space collapse with \nbone spurring. (Cl.Ex.1, P.25-28) \n The claimant returned to Dr. Seale on May 9, 2016, and the report provided that \nthe claimant was at MMI and he was assessed with C5-6 degenerative disc disease with \nleft sided neck pain to the shoulder and L5-S1 severe degenerative disc disease, back \npain, and bilateral leg pain.  The patient’s impairment rating was zero percent (0%) due \nto no objective findings of injury and that the problems were pre-existing.  The claimant \nwas  allowed  to  return  to  work  full-duty  with  no  restrictions.  (Cl.Ex.1,  P.  29-30)    The \nclaimant returned to Dr. Seale approximately nine (9) months later on February 13, 2017.  \nThe report provided the claimant had a full range of motion without pain, tenderness, or \nsigns  of  instability.    The  cervical  spine was  limited  with  pain  worse  on  extension  and \nextension of the lumbar spine resulted in severe low back pain.  The plan provided for \ncore   strengthening   and   stretching,   as   well   as   possible   traction   and   education.  \nRestrictions for no commercial driving and no lifting over twenty (20) pounds were given. \n(Cl.Ex.1, P. 31-35)  The claimant then returned to Reaper Physical Therapy on March 29, \n\nJOHNSON – G506453 \n \n11 \n \n2017, and then again presented to Dr. Seale on April 24, 2017, and also June 5, 2017, \nand  a  MRI  of  the  cervical  and  lumbar  spine  was  recommended  along  with  additional \nphysical  therapy.  (Cl.Ex.  1,  P. 36-40)    After  additional  physical  therapy,  the  claimant \nreceived an epidural steroid injection by Dr. Walker at the C 6-7 epidural space on July \n31, 2017.  The diagnosis was for cervical radiculopathy with disc degeneration at C5-6 \nand C6-7.  (Cl. Ex. 1, P. 41, 42)  The claimant then returned to Dr. Seale on October 18, \n2017, and was assessed with C5-6 and C6-7 degenerative disc disease with left-sided \nneck pain to the left shoulder and arm and severe degenerative disc disease, back pain, \nand bilateral  leg pain at  L5-S1.    The  report went  on  to  provide that  the symptoms  had \nbeen ongoing since a work-related injury over two (2) years ago and that, “it is within a \ncertain degree of medical certainty that at least 51% of the patient’s current symptoms \nand  need  for  surgery  are  directly  related  to  their  work  injury.”  (Cl.Ex.1,  P.  43-45)    The \nclaimant then returned to Dr. Seale on December 12, 2017, and the report again referred \nto  severe  neck  pain  since  a  work-related  injury  two  (2)  years  ago  and, “Therefore  it  is \nwithin  a  certain  degree  of  medical  certainty  that  at  least  51%  of  the  patient’s  current \nsymptoms and need for surgery are directly related to their work injury.”  (Cl. Ex. 1, P. 46, \n47) \n An  anterior  cervical  fusion  at  the  C5,  C6,  and  C7  levels  was  performed  at  St. \nVincent on December 12, 2017, by Dr. Seale.  The post-op diagnosis was degenerative \njoint disease and stenosis at C5-6 and C6-7. (Cl. Ex.1, P 48-52)  The claimant returned \nto  Dr.  Seale  for  an  office  visit  on  February  28,  2018,  and  the  claimant  was  placed    on \nrestrictions  with  no  commercial  driving  and  a  functional  capacity  exam  was  discussed. \n(Cl. Ex. 1, P. 53-56)  On July 11, 2018, Dr. Seale opined that the claimant had reached \n\nJOHNSON – G506453 \n \n12 \n \nMMI  and  could  return  to  work  without  restrictions.    His  impairment  rating  was  eleven \npercent (11%) based upon a single level cervical fusion with decompression with residual \npain being zero percent (0%) with an additional one percent (1%) for the second level.  \nHe was allowed to work with no restrictions. (Cl. Ex. 1, P. 59-61) \n  A Neuropsych consult was performed by Dan Johnson, PHD, on March 12, 2020, \nwhen the claimant was seventy-one (71) years of age.    The report provided that given \nthe  claimant’s  severe  short-term  memory  deficits,  as  well  as  deficits  in  visual  motor \ncapacity,     processing     speed,     and     visual     spatial/depth     perception     from     a \nneuropsych/neurocognitive  perspective,  the  claimant’s  capacity  to  successfully,  and \nreliably navigate the demands of employment were extremely guarded, and he should be \nconsidered   one   hundred   percent   (100%)   disabled   at   that   time   with   no   work \nrecommended. (Cl.Ex.1, P. 62-65)    \n The claimant presented to AR Care on June 30, 2020, for assistance in obtaining \nshort-term  disability.      The  claim  form  provided  that  the  disability  began  on  March  12, \n2020,  and  the  claimant’s  short-term  memory  loss  could  not  be  reversed. (Cl.Ex.1, \nP. 66-71)  A Health Care Provider Statement dated  August 20, 2020, provided that the \nclaimant  had  a  permanent  long-term  condition  that  might  not  require  treatment  but \nrequired the supervision of a health care provider, with the date of leave starting on March \n12, 2020, and going for the claimant’s lifetime. (Cl.Ex.1, P. 79-81) \n On May 27, 2021, the claimant presented to Dr. Barry Baskin for an Independent \nMedical  Exam.    The exam provided  that  the  claimant’s  chief  complaint  was neck  pain, \nneck stiffness, right ear pain, headaches, poor balance and occasional falls, low back and \nhip  pain bilaterally, and  severe memory deficits.  The  exam  appeared  to be a  thorough \n\nJOHNSON – G506453 \n \n13 \n \nreview  of  the  claimant’s  medical  history  from  the  time  of  the  accident.  The  opinion \nreferred to  Dr.  Seale’s  findings  that  although  the  claimant  had  some  pre-existing \nconditions  in  regard  to  his  cervical  spine,  Dr.  Seale  opined  that  greater  than  fifty-one \npercent  (51%) of  the  claimant’s neck  problems  were  related  to  the  work  injury  and  he \nrecommended  cervical  fusion  at  C5-6  and  C6-7.    However,  Dr.  Baskin  felt  that  the \nclaimant’s cognitive decline was more difficult to relate to the accident, due to the interval \nof time between the fall and his exam, approximately six (6) years later.  Dr. Baskin also \nreferred to the records of Dr. Wornock who was following the claimant acutely with the \nrecords providing the claimant manifested memory deficits almost immediately after his \ninjury.  He went on to provide that there were many well documented studies outlining \naccelerated cognitive decline associated with a closed head injury.  He felt an MRI would \nhave  been  helpful  in  regard  to  a  diagnosis  and  that  this  case  was  difficult  due  to  the \nclaimant approaching six (6) years post-injury. He also provided that,“Dr. Johnson, based \non the patient’s history, did not seem to think the patient’s cognitive issues were related \nto the injury.”  Dr. Baskin felt there was additional medical out there. (Cl.Ex.1, P. 82-88)  \nAn addendum to the Independent Medical Evaluation report by Dr. Baskin dated June 28, \n2021,  provided  that  the  claimant  had  significant  memory  issues  and    it  was  difficult  to \nknow how much of the problem was related to the workers’ compensation injury of August \n21, 2015, “versus other conditions of aging.”  Dr. Baskin recommended a non-contrasted \nMRI  of  the  brain  that  would  possibly  provide  the  etiology  of  the  claimant’s  ongoing \ncognitive issues. (Cl. Ex. 1, P. 90-91)   \n  The claimant received multiple weeks of physical therapy starting on July 7, 2021, \nwith the final visit on August 25, 2021.  The final report provided that the claimant attended \n\nJOHNSON – G506453 \n \n14 \n \nten (10) total sessions and made good progress during the structured therapy sessions.  \nThe patient had questionable carry-over outside of the therapy settings, putting the patient \nat risk for decline.  The patient had exhibited moderate to severe memory and processing \ndeficits affecting his problem solving. (Cl.Ex.1, P. 93-108) \n It has been noted that the claimant sent an email on Tuesday, May 2, objecting to \nthe respondent calling Teddy Townsend as a witness, contending that Mr. Townsend’s \nname was not provided earlier and timely in the discover process. (Cl. Ex. 3, P. 1) \n The respondent also submitted multiple medical records.  The claimant presented \nto Tonya C. Roberts, APRN, on November 19, 2015, with the chief complaint being a right \neye  injury  after  the  claimant  had  injured  his  eye  after  hitting  the  edge  of   a  pallet.  \nIt  appeared  that  he  was  diagnosed  with  pink  eye  disease  of  the  right eye. (Resp. \nEx. 1, P. 1-2)   \n   The  respondents  also  provided  reports  from  Reaper  Physical  Therapy  from \nNovember 19, 2015, up through January 19, 2016.  (Resp. Ex. 1, P 3-19)  In addition, the \nrespondents provided a  report from  the Arkansas Specialty  MRI  Center  dated  July 10, \n2017,  of  an  MRI  of  the  cervical  spine.    The  report  provided  that  there  was  disc \ndegeneration  with mild  disc bulges at  C5-6 and  C6-7  with moderate  bilateral foraminal \nstenosis at C5-6 and C6-7. (Resp. Ex. 1, P. 20)  The respondents also provided a letter \nfrom  the  employer  that  the  claim  was  accepted  as  compensable.    (Resp.  Ex. 2,  P.  2)  \nFinally, it was noted that the respondents listed Teddy Townsend as a witness by an email \ndated may 2, 2022, which was seven days prior to the hearing.  (Resp. Ex. 3, P 1)  \nDISCUSSION AND ADJUDICATION OF ISSUES \n \n\nJOHNSON – G506453 \n \n15 \n \nThe claimant objected to the testimony of Teddy Townsend who was listed as a \nwitness  seven  (7)  days  prior  to  the  hearing.    It  is  noted  that  the  claimant had  filed  an \namended response to the Prehearing Questionaire, with the claimant’s counsel believing \nit was filed on May 1, 2021, and which has been made part of the record.  Mr. Townsend’s \ntestimony helped clarify the number of miles that the claimant had driven after returning \nto work in 2018 and 2019, and  the testimony  helped to clarify the work of the claimant \nand the applicable payroll records.  It is well known that the Commission is given broad \ndiscretion in the admission of evidence and shall use a liberal interpretation in regard to \nthe admission of evidence, conducting the hearing in a manner as will best ascertain the \nrights of the parties. Ark. Code Ann. §11-9-705(a).  Consequently, the testimony of Mr. \nTownsend was admitted.   \nThe claimant’s injuries to his right hip and neck on August 21, 2015, when he fell \nfrom his truck while attempting to remove an antenna, were accepted by the respondents \nas compensable, and the claimant received medical treatment which consisted of multiple \nvisits to the doctor, significant physical therapy, and surgery to his neck.  In addition, he \nreceived  an  eleven  percent  (11%)  disability  rating  to  the  body  as  a  whole  due  to  the \naccepted compensable neck injury which had been paid in full at the time of the hearing.  \nThe claimant also contends he suffered a head injury and an injury to his back at \nthe time of the accident which should be found to be compensable and he is entitled to \nreasonable and necessary medical for these injuries, in addition to PPD in regard to his \nback injury from August 21, 2015, to a date to be determined.  The claimant also contends \nhe is entitled to permanent and total disability or, in the alternative, wage-loss along with \nattorney fees.  The respondents contend that claimant’s problems related to his head and \n\nJOHNSON – G506453 \n \n16 \n \nback are not work-related and compensable and there are no objective findings in regard \nto these claims.   \nThe claimant was born on July 11, 1948, and was driving a truck for the respondent \nwhen he attempted to remove an antenna from the truck on August 21, 2015, fell in the \nprocess, and was taken to Dr. Warnock on the day of the accident. The medical report \nprovided  the  claimant’s  ear had  an  open  wound  which  was  stitched  up.    The  claimant \nreturned to Dr. Warnock on August 22, 2015, and the report mentioned a bruise over the \nright deltoid, good range of motion of the hip and shoulder, no bruise over the buttock, \nand additionally mentioned a head injury.  The claimant then returned to Dr. Warnock on \nAugust 25, 2015, and a mental status change was noted along with numbness of the right \nhip.  A CT scan of the brain was ordered which provided a negative scan of the brain and \nmaxillary sinusitis.  The claimant then returned to Dr. Warnock on September 11, 2015, \nand the report provided that the mental status had resolved.  Claimant received physical \ntherapy and Dr. Warnock diagnosed him with cervicalgia with a limited range of motion \non February 2, 2016.  The claimant stated that he was still suffering from headaches and \npain in turning his head to the left. \nThe  claimant  was  referred  to  Dr.  Seale  on  March  7,  2016,  who  assessed \ndegenerative disc disease at the C5-6 and severe degenerative disc disease at L5-S1.  \nOn  May  9,  2016,  the  claimant  received  an  MRI  of  the  spine  which  confirmed  the \ndegenerative disc disease.  Dr. Seale issued an impairment rating of zero percent (0%) \nopining that there were no objective findings of injury and the problems were pre-existing.  \nThe  claimant  returned  to  Dr.  Seale  on  February  13, 2016,  and  the  report  provided  the \nclaimant had a full range of motion without pain or tenderness.  The claimant continued \n\nJOHNSON – G506453 \n \n17 \n \nto have issues and on July 31, 2017, the claimant received an epidural steroid  shot by \nDr. Walker for cervical radiculopathy, and the report again provided that the problem was \ndue to disc degeneration at the C5-7. \nDr. Seale issued an opinion on October 18, 2017, that was clarified on December \n12, 2017, that the severe neck pain was from a work-related injury and, “therefore it is \nwithin a certain degree of medical certainty that at least 51% of the patient’s symptoms \nare directly related to the work injury.”  Dr. Seale performed an anterior cervical fusion at \nthe C5, C6, and C7 levels with a post operative diagnosis of degenerative disc disease \nand stenosis at the C5-6 and C6-7 levels.  On July 11, 2018, Dr. Seale applied an eleven \npercent (11%) impairment rating to the neck injury based upon the cervical fusion, and \nstated the claimant could return to work. \nThe claimant returned to work and drove approximately 55,000 plus miles in 2018 \nand 77,975 miles in 2019, after passing two (2) DOT physicals.  The claimant contended \nhe still suffered from back pain and memory issues and a Neuropsych consult was then \nperformed by Dr. Johnson, PHD, on March 12, 2020, when the claimant was seventy-one \n(71)  years  of  age, and  who  found  that  the  claimant  suffered  from  severe  short-term \nmemory deficits and was one hundred percent (100%) disabled at the time with no work \nrecommended.  \nAn  independent  medical  exam  was  performed  by  Dr.  Barry  Baskin  on  May  27, \n2021.    The  exam  provided  that  the  claimant’s  chief  complaint  was  neck pain,  neck \nstiffness, right ear pain, headaches, poor balance, low back pain, and bilateral hip pain, \nwith severe memory deficits.  The opinion referred to Dr. Seale’s findings that although \nthe claimant had some pre-existing issues in regard to  his cervical spine, that fifty-one \n\nJOHNSON – G506453 \n \n18 \n \npercent (51%) of the claimant’s neck problems were related to the work injury.  Dr. Baskin \nalso opined that claimant’s cognitive decline was more difficult to relate to the accident, \ndue to the interval of time between the accident and the time of his exam, the lack of an \nMRI of the brain, and the claimant’s age.  He also interpreted Dr. Johnson’s report to find \nbased upon the claimant’s history, that claimant’s cognitive issues were not related to the \nwork-related injury.      \nIn regard to the issues of compensability of the claimed back and head injuries, \nthe claimant has the burden of proving, by a preponderance of the evidence, that he is \nentitled  to  compensation  benefits  for  these  injuries  under  the  Arkansas  Workers’ \nCompensation  Law.    In  determining  whether  the  claimant  has  sustained  his  burden  of \nproof, the Commission shall weigh the evidence impartially, without giving the benefit of \nthe doubt to either party.  Ark. Code Ann.  §11-9-704.  Wade v. Mr. Cavananugh’s, 298 \nArk.  364,  768  S.W. 2d  521  (1989).    Further, the  Commission  has  the  duty  to  translate \nevidence  on  all  issues  before  it  into  findings  of  fact.   Weldon  v.  Pierce  Brothers \nConstruction Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996). \nUnder  workers’ compensation  law  in  Arkansas,  a  compensable  injury  must  be \nestablished  by medical  evidence  supported by  objective  findings  and  medical opinions \naddressing  compensability  must  be  stated  within  a  degree of medical  certainty. Smith-\nBlair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002).  Speculation and conjecture \ncannot substitute for credible evidence.  Liaromatis v. Baxter County Regional Hospital, \n95 Ark. App. 296,  236  S.W.3d 524  (2006).  More  specifically,  to prove a  compensable \ninjury,  the  claimant  must  establish  by  a  preponderance  of  the  evidence:  (1)  an  injury \narising  out  of  and  in  the  course  of  employment;  (2)  that  the  injury  caused  internal  or \n\nJOHNSON – G506453 \n \n19 \n \nexternal  harm  to  the  body  which  required  medical  services  or  resulted  in  disability  or \ndeath; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. \n§11-9-102  (16)  establishing  the  injury  and  (4)  that  the  injury  was  caused  by  a  specific \nincident and identifiable by time and place of occurrence.  If the claimant fails to establish \nany of the requirements for establishing the compensability of the claim, compensation \nmust be denied.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 s.W.2d \n876 (1997). \nAn  injury  for  which  the  claimant  seeks  benefits  must  be  established  by medical \nevidence supported by objective findings which are findings that cannot come under the \nvoluntary  control  of  the  patient. Ark.  Code  Ann. § 11-9-102  (16).  It  is  also  important  to \nnote that the claimant’s testimony is never considered uncontroverted.  Lambert v. Gerber \nProducts Co.  14 Ark. App. 88, 684 S.W.2d 842 (1985).  \nHowever, under  Arkansas  Workers’  Compensation  law,  it  is also  clear  that  an \nemployer  takes  the  employee  as it  finds  him  and  employment  circumstances  that \naggravate preexisting conditions are compensable.  Heritage Baptist Temple v. Robinson, \n82 Ark. App. 460, 120 S.W.3d 150 (2003). \nFurther, a claimant is not required in every case to establish the casual connection \nbetween a work-related incident and an injury with an expert medical opinion.  See, Wal-\nmart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).  Arkansas courts \nhave  long  recognized  that  a  causal  relationship  may  be  established  between  an \nemployment-related  incident  and  a  subsequent  physical  injury  based  on  evidence  that \nthe injury manifested itself within a reasonable period of time following the incident so that \nthe  injury  is  logically  attributable  to  the  incident,  where  there  is  no  other  reasonable \n\nJOHNSON – G506453 \n \n20 \n \nexplanation for the injury.  Hail v. Pitman Construction Co. 235 Ark. 104, 357 A.W.2d 263 \n(1962) \nA compensable injury is one that was the result of an accident that arose in the \ncourse of his employment and that it grew out of or resulted from the employment.  See, \nMoore v. Darling Store Fixtures, 22 Ar. App 21, 732 S.W.2d 496 (1987)  In regard to the \nclaimed back injury, the medical records clearly provide that the claimant suffered from \nsevere degenerative disc disease at L5-S1.  Dr. Wornock, the claimant’s initial treating \nphysician never opined that the claimant’s back problems were work-related.  Dr. Seale, \nwho could be considered the primary treating physician, opined that the neck or cervical \nproblems were at least fifty-one (51%) related to the work injury, but never made such a \nfinding  in  regard  to  the  remainder  of  the  back  even  after  treating  the  claimant  for  an \nextended period of  time  and performing  surgery  on  the  claimant’s neck.  The  claimant \nreturned to the same job for two (2) years.  Based upon the available evidence in the case \nat bar, there is no alternative but to find that the claimant has failed to satisfy the burden \nof  proof  to  show  that  his  back  claim  is  compensable under  the  Arkansas  Workers’ \nCompensation Act and that consequently, the question of medical and permanent partial \ndisability as well as attorney fees in regard to the back are moot. \nIn regard to the claim of a head injury, the claimant was born on July 11,1948, and \nboth  Dr.  Johnson  and  Dr.  Baskin  made  no  finding  in  regard  to  the  claimant’s  memory \nissues being related to the work injury of August 21, 2015.  For that matter, no treating \nphysician opined that the memory issue was related to the work injury.  The claimant was \ninjured on August 21, 2015, and both Dr. Baskin and Dr. Johnson inferred  that it would \nbe difficult to make a finding of a connection between the memory issue and the accident \n\nJOHNSON – G506453 \n \n21 \n \ndue to the passage of time of approximately six (6) years, the lack of an MRI of the brain, \nand the claimant’s age.  Consequently, there is no alternative but to find that the claimant \nhas failed to satisfy the required burden of proof that his head injury is compensable under \nthe Arkansas Workers’ Compensation Act, and that consequently all other issues relating \nto the head injury are moot.  \nIn  regard  to  the  issue  of  permanent  and  total  disability  or,  in  the  alternative, \nwage-loss,  permanent  total  disability  means  the  inability,  because  of  a  compensable \ninjury  or  occupational  disease  to  earn  any  meaningful  wages  in  the  same  or  other \nemployment.  Ark. Code Ann.§ 11-9-519(e)(1).  The burden of proving the inability to earn \nany meaningful wages is on the employee. Ark. Code Ann. § 11-9-519(e)(2).  Permanent \nbenefits  may  be  awarded  only  if  the  compensable  injury  was  the  major  cause  of  the \ndisability or impairment.  Ark. Code Ann. § 11-9-102(4)(F)(ii)(a).  Here, the claimant, after \npassing two (2) DOT physicals, returned to the same occupation in 2018 and 2019, again \ndriving a truck long-distance.  The evidence provides that sufficient memory issues later \ndeveloped and that he was found to be one hundred percent (100%) disabled due to the \nfact  it  was  no  longer  safe  for  him  to  drive.    There  are  no  evidentiary  findings  that  the \nmemory  issues were  related  to  the  accident  on  August  21,  2015.    The  issue  was \ndiscussed in the reports of Dr. Johnson and Dr. Basin.   Any such finding of permanent \ntotal disability would be based upon speculation.  Consequently, there is no alternative \nbut to find that the claimant has failed to satisfy the required burden of proof that the claim \nfor  permanent  and  total  disability  is  compensable  under  the  Arkansas  Workers’ \nCompensation Act. \n\nJOHNSON – G506453 \n \n22 \n \nIn the alternative, the claimant contends that he is entitled to wage-loss disability.  \nThe extent of disability is a question of fact for the Commission.  Cross v. Crawford County \nMemorial Hospital, 54 Ark. App. 130, 923 S.W.2d 886 (1996).  Factors to be considered \nin accessing wage-loss include the claimant’s age, education, post injury income, work \nexperience,  medical  evidence,  and  other  matters  that  may  reasonably  be expected  to \naffect the workers’ future earning power such as motivation, post injury income, bona fide \njob offers, credibility or voluntary termination.  Glass v. Edens, 233 Ark. 786, 346 S.W.2d \n685 (1961); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 s.W.2d 276 (1982);  \nHope School District v. Charles Wilson, 2011 Ark. App. 219, 382 S.W.3d 782 (2011).  The \naward of wage-loss is not a mathematical formula, but a judicial determination based on \nthe  Commission’s  knowledge  of  industrial  demands,  limitations,  and  requirements.  \nHenson v. General Electric, 99 Ark. App. 129, 257 s.W.3d 908 (2008)   \nPursuant to Ark. Code Ann. §11-9-522(b)(1), when a claimant has an impairment \nrating to the body as a whole, the Commission has the authority to increase the disability \nrating  based  upon  wage-loss  factors.    The  wage-loss  factor  is  the  extent  to  which  a \ncompensable  injury  has  affected  the  claimant’s  ability  to  earn  a  livelihood.   Emerson \nElectric v. Gaston, 75 Ark. App 232, 58 S.W.3d 848 (2001).  Objective and measurable \nphysical findings which are necessary to support a determination of “physical impairment” \nor  anatomical  disability  are  not  necessary  to  support  a  determination  of  wage-loss.  \nArkansas Methodist v. Adams, 43 Ark. App. 1, 858 S.W.2d (1993).  To be entitled to any \nwage-loss disability benefit in excess of a permanent impairment rating, a claimant must \nfirst  prove  that  he  or  she  sustained  a  permanent  physical  impairment  as  a  result  of  a \n\nJOHNSON – G506453 \n \n23 \n \ncompensable  injury.   Wal-Mart  Stores,  Inc.  v.  Connell,  340  Ark.  475,  10  S.W.  3d  882 \n(2000). \nHere the claimant suffered a compensable neck injury and was awarded an eleven \npercent (11%) rating to the body as a whole.  The claimant was nearly sixty-seven (67) \nyears  old  at  the  time  of  the  work-related  accident  and  approximately  seventy-five (75) \nyears  old  at  the  time  of  the  hearing.    After  treatment  for  the  neck  injury,  the  claimant \nreturned to work for another two (2) years after passing two (2)  DOT physicals and driving \nin excess of 55,000 miles each year.  The claimant was evaluated in regard to his memory \nissues after driving for two (2) years by Dr. Johnson and also by Dr. Baskin.  Dr. Johnson \nfound  that  the  claimant  was  one  hundred  percent  (100%)  disabled  due  to  severe \nshort-term memory deficits.  Both Dr. Johnson and Dr. Basking, who performed an IME, \nfelt that there were multiple factors that could have caused the memory loss and never \nopined that the cause was due to the claimant’s compensable injury six (6) years prior.  \nConsequently,  there  is  no  alternative  but  to  find  that  the claimant’s  proof has  failed  to \nshow  that  the  compensable  injury  was  in  fact  the  cause  of  the  memory  loss  and \nconsequently the claimant has failed to satisfy that he is entitled to wage-loss.            \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, there is no alternative but to find that the claimant has failed to satisfy the \nrequired burden of proof that the claim for his back and head injury are compensable and \nconsequently,  the  claim  for  PPD  in  regard  to  the  back  injury  is moot as  well  as  the \nquestion  of  medical  and  attorney  fees  for  both  injures.    Additionally,  the  claimant  has \nfailed to satisfy the required burden of proof for permanent and  total disability and also \n\nJOHNSON – G506453 \n \n24 \n \nwage-loss, and consequently attorney fees.  The respondents are ordered to pay the cost \nof the transcript forthwith. \nIT IS SO ORDERED. \n \n        ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G506453 KENNETH A. JOHNSON, EMPLOYEE CLAIMANT VS. LAND O’FROST, EMPLOYER RESPONDENT LAND O’FROST, INC. CARRIER PMA MANAGEMENT CORP, TPA RESPONDENT OPINION FILED JUNE 20, 2023 Hearing before Administrative Law Judge, James D. Kennedy, on the 9 TH day of May,...","fetched_at":"2026-05-19T23:06:34.040Z","links":{"html":"/opinions/alj-G506453-2023-06-20","pdf":"https://labor.arkansas.gov/wp-content/uploads//JOHNSON_KENNETH_G506453_20230620.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}