{"id":"alj-G704530-2024-12-02","awcc_number":"G704530","decision_date":"2024-12-02","opinion_type":"alj","claimant_name":"Brandon Mcmurtry","employer_name":"Vilonia Waterworks Assn., Inc","title":"McMURTRY VS. VILONIA WATERWORKS ASSN., INC. AWCC# G704530 & G800411 December 02, 2024","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["hip","neck","back","shoulder","knee","fracture","lumbar","strain"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/McMurtry_Brandon_G704530_20241202.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"McMurtry_Brandon_G704530_20241202.pdf","text_length":67394,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NOS. G704530 & G800411 \n \n \nBRANDON B. McMURTRY, EMPLOYEE CLAIMANT \n \nVILONIA WATERWORKS ASSN., INC., \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. MUNICIPAL LEAGUE, \n THIRD-PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED DECEMBER 2, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on September  5,  2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. George Bailey, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by Ms. Mary K. Edwards, Attorney at Law, North Little Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On September  5,  2024,  the  above-captioned  claims were heard  in Little  Rock, \nArkansas.    A  pre-hearing  conference  took  place  on June  24,  2024.   The Prehearing \nOrder  entered  that  same  day  pursuant  to  the  conference  was  admitted  without \nobjection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the \nstipulation, issues, and respective contentions were properly set forth in the order. \nStipulations \n At   the   hearing,   the   parties   discussed Stipulation No.   1   as   set forth   in \nCommission  Exhibit  1.   After  the  conclusion  of  the  hearing,  the  parties  reached \nStipulation No. 2.  They are the following, which I accept: \n\nMcMURTRY – G704530 & G800411 \n \n2 \n \n1. The previous  decisions  in  these  claims are  binding  on  this  proceeding \nunder the Law of the Case Doctrine. \n2. The references in Claimant’s medical records in evidence (i.e., his Exhibit \n1) to a “Kasey Bunting” is likely a clerical error; the records in question \nare those of Claimant. \nIssues \n At the hearing, the parties discussed the issues set forth in Commission Exhibit \n1.  They read: \n1. Whether  Claimant  sustained  an  injury  to  his  left  hip  as  a  compensable \nconsequence of his stipulated compensable injuries. \n2. Whether  Claimant  is  entitled  to  reasonable  and  necessary  medical \ntreatment of his alleged compensable consequence left hip injury, and/or \nadditional medical treatment of his compensable left hip injury of June 26, \n2017. \n3. Whether Claimant is entitled to additional temporary total disability bene- \nfits from November 1, 2022, to a date yet to be determined. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \nAll other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n\nMcMURTRY – G704530 & G800411 \n \n3 \n \n Claimant: \n1. Claimant  contends  that  that  he is  entitled  to  additional  reasonable  and \nnecessary   medical   treatment   and   unpaid   medically-related   travel \nexpenses. \n2. Claimant  also  contends  that  he  is  entitled  to  a  new  period  of  temporary \ntotal  disability  benefits  from  November  1,  2022,  to  a  date  yet  to  be \ndetermined. \n3. It   is   further contended that Claimant’s  hip  condition  and  need  for \nadditional  hip  surgery  undergone  on  May  15,  2024,  is  a  compensable \nconsequence.    Claimant  contends  that  he  has  sustained  loss  of  medial \nfemoral  head,  along  with  neck  constriction,  which  are  compensable \nconsequences of the original compensable hip injury. \n4. Claimant reserves issues of permanency. \n5. Statutory  attorney’s  fees  based  upon  all  controverted  amounts  are \nclaimed. \nRespondents: \n1. Respondents  contend  that  Claimant  is  not  entitled  to temporary  total \ndisability  benefits  for  his  back  or  his  left  hip.    Pursuant  to  the  previous \nopinions,   Claimant   was   determined   to   be   at   maximum   medical \nimprovement on February 13, 2018, for his back. \n\nMcMURTRY – G704530 & G800411 \n \n4 \n \n2. Respondents further contend that  he  has  not  re-entered  his  healing \nperiod  for  his  back;  therefore,  he  is  not  entitled  to  any  additional \ntemporary total disability benefits. \n3. Finally,  Respondents  contend  that  the  hip  treatment,  including  the  most \nrecent  surgery  by  Dr. Lawrence O’Malley, is not reasonable, necessary, \nor related to his compensable hip injury. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear the testimony of the witnesses and to observe their demeanor, I hereby make the \nfollowing findings of fact  and  conclusions of  law  in accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he \nsustained an injury to his left hip as a compensable consequence of any \nhis compensable injuries. \n4. Because of Finding of Fact/Conclusion of Law No. 3, supra, and because \nhe has not causally related it to his compensable injury of June 26, 2017, \nClaimant  has  not  proven  by  a  preponderance  of  the  evidence  that  his \n\nMcMURTRY – G704530 & G800411 \n \n5 \n \nMay  15,  2024, left hip  replacement  surgery,  or  any  of  his  other left hip \ntreatment on   and after   October   8,   2021, is   the   responsibility   of \nRespondents. \n5. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled to additional temporary total disability benefits for any period. \n6. Because of Finding of Fact/Conclusion of Law No. 5, supra, Claimant has \nnot  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to  a \ncontroverted attorney’s fee. \nCASE IN CHIEF \nSummary of Evidence \n Claimant and his mother, Gayle McMurtry, were the hearing witnesses. \n In  addition  to  the Prehearing Order  discussed  above,  admitted  into  evidence \nwere  the  following:    Claimant’s  Exhibit  1,  a  compilation  of  his medical  records, \nconsisting of two index pages and 122 numbered pages thereafter; Claimant’s Exhibit \n2, his amended prehearing questionnaire response filed on June 11, 2024, consisting \nthree pages; Respondents’  Exhibit  1,  another  compilation  of  Claimant’s  medical \nrecords,  consisting  of  one  index  page  and 21 numbered  pages  thereafter; and \nRespondents’ Exhibit 2, payment records,  consisting  of  one index  page  and seven \nnumbered pages thereafter.  In addition, I have blue-backed to the record the one-page \nemail thread memorializing the agreement of the parties to Stipulation No. 2. \n\nMcMURTRY – G704530 & G800411 \n \n6 \n \n The transcripts of the August 15, 2019, and August 11, 2022, hearings on these \nclaims,  along  with their blue-backed  exhibits,  have  been fully incorporated  herein  by \nreference. \nAdjudication \nA. Introduction \n An assessment of the issues at bar first requires a recounting of the procedural \nhistory of these claims.  On August 15, 2019, the first hearing was held on these claims \nbefore me.  The October 28, 2019, opinion thereon contains the following Findings of \nFact and Conclusions of Law: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover these claims. \n \n2. The  stipulations set  forth  [below]  are  reasonable  and  are  hereby \naccepted[:] \n \nA. The   employee/self-insured   employer/third-party   adminis- \ntrator relationship existed on June 26, 2017, when Claimant \nwas  involved  in  a  motor  vehicle  collision  and  sustained \ncompensable injuries to his back and left shoulder. \n \nB. The   employee/self-insured   employer/third-party   adminis- \ntrator   relationship   existed   on   January   11,   2018,   when \nClaimant sustained a compensable injury to his back. \n \nC. Respondents  accepted  the  above  injuries  as  compensable \nand paid benefits pursuant thereto. \n \nD. Claimant’s average weekly wage with respect to Claim No. \nG704530 and concerning the date of injury of June 26, 2017, \n$774,00,     entitles     him     to     compensation     rates     of \n$516.00/$387.00. \n \n\nMcMURTRY – G704530 & G800411 \n \n7 \n \nE. Claimant’s average weekly wage with respect to Claim No. \nG800411  and  concerning  the  date  of  injury  of  January  11, \n2018,   $749.00,   entitles   him   to   compensation   rates   of \n$499.00/$374.00. \n \n3. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he \nsustained a compensable left hip injury by specific incident on June \n26, 2017. \n \n4.  Claimant has proven by a preponderance of the evidence that he is \nentitled to reasonable and necessary treatment of his compensable \nleft hip injury. \n \n5. Claimant has proven by a preponderance of the evidence that all of \nthe  treatment  of  his  compensable  left hip  injury  that  is  in  evidence \nwas reasonable and necessary. \n \n6. Claimant has proven by a preponderance of the evidence that all of \nthe  treatment  of  his  compensable  back  injury  that  is  in  evidence \nwas reasonable and necessary. \n \n7. Claimant has proven by a preponderance of the evidence that he is \nentitled  to  additional  medical  treatment  of  his  compensable  back \ninjury in the form of pain management. \n \n8. Claimant has proven by a preponderance of the evidence that he is \nentitled to temporary partial disability benefits during the periods of \ntime  that  he  was  on  sick  and/or  catastrophic  leave  in  connection \nwith his compensable left hip injury from March 5, 2018, to July 22, \n2018, and from November 19, 2018, to January 17, 2019. \n \n9.  Claimant has proven by a preponderance of the evidence that he is \nentitled to a controverted attorney’s fee under Ark. Code Ann. § 11-\n9-715 (Repl. 2012) on all indemnity benefits awarded herein. \n \nRespondents appealed this decision.  On June 11, 2020, the Full Commission affirmed \nand  adopted  the administrative  law  judge’s  decision.  Brandon  McMurtry v. Vilonia \nWaterworks  Assn.,  Inc.,  Claim  Nos.  G704530  &  G800411 (Full  Commission  Opinion \nfiled June 11, 2020)(unpublished). \n\nMcMURTRY – G704530 & G800411 \n \n8 \n \n On August 11, 2022, the second hearing on these claims was tried before me.  \nThe  November  1,  2022, opinion  thereon  contains  the  following  Findings  of  Fact  and \nConclusions of Law: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover th[ese] claim[s]. \n \n2. The  stipulation  set  forth  [below]  is  reasonable  and  is  hereby \naccepted[:] \n \nA. The administrative law judge opinion filed October 28, 2019, \nand  the  Full  Commission  opinion  filed  June  11,  2020,  are \nbinding  on  this  proceeding  under  the  Law  of  the  Case \nDoctrine. \n \n3. The   evidence   does   not   preponderate   that   Respondents   have \nabridged   Ark.   Code   Ann.   §   11-9-802(c)   &   (e)   (Repl.   2012) \nconcerning their payment or (thus far) non-payment of any medical \nbills covered under the previous decision in this matter. \n \n4. Notwithstanding Finding/Conclusion No. 3 supra, Respondents are \nhereby directed to reimburse Claimant forthwith for all of his out-of-\npocket  expenditures  made  in  connection  with  treatment  that  was \nfound  in  the  previous  hearing  to  be  reasonable  and  necessary—\nand, consequently, their responsibility. \n \n5. Claimant has proven by a preponderance of the evidence that all of \nthe  treatment  of  his  compensable  back  injuries  that  is  in  evidence \nwas reasonable and necessary.  As part of this, he has established \nhis  entitlement  to  the  ReActiv8  treatment  recommended  by  Dr. \nJohnathan Goree. \n \n6. Claimant has proven by a preponderance of the evidence that all of \nthe  treatment  of  his  left  hip  that  is  in  evidence  and  that  occurred \nprior to October 8, 2021, was reasonable and necessary. \n \n7. Claimant has proven by a preponderance of the evidence that he is \nentitled  to  temporary  total  disability  benefits  from  February  26, \n2020, to December 17, 2020. \n \n\nMcMURTRY – G704530 & G800411 \n \n9 \n \n8. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  his \ncounsel is entitled to a controverted attorney’s fee on the additional \nindemnity  benefits  awarded  herein  under  Ark.  Code  Ann.  §  11-9-\n715 (Repl. 2012). \n \nThis decision was not appealed.  These earlier opinions are binding on this proceeding \nunder the Law of the Case Doctrine; and they are res judicata.  See Thurman v. Clarke \nIndustries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). \nB. Compensable Consequence \n Introduction.   In  this  proceeding,  Claimant  wishes  for  the  Commission  to  find \nthat  his  May  15,  2024,  hip replacement surgery  is  the  responsibility  of  Respondents.  \nHis  first  hurdle  in  achieving  this  result  is  getting  around  the 2022  opinion,  wherein I \nfound that Claimant proved by a preponderance of the evidence that only the treatment \nof his left hip in evidence that occurred prior to October 8, 2021, was reasonable and \nnecessary.  See supra.  To do this, Claimant is arguing that the condition of his left hip \nthat allegedly necessitated  this 2024 surgery—his  sixth  on  that body  part—is  a \ncompensable  consequence  of  his  compensable  hip  injury  that  he was  found  to  have \nsustained by specific incident on June 26, 2017.  Respondents dispute this. \n Standards.  If an injury is compensable, every natural consequence of that injury \nis  likewise  compensable.   Air  Compressor  Equip.  Co.  v.  Sword,  69  Ark.  App.  162,  11 \nS.W.3d 1 (2000); Hubley v. Best West. Governor’s Inn, 52 Ark. App. 226, 916 S.W.2d \n143  (1996).    The  test  is  whether  a  causal  connection  between  the  two  (2)  episodes \nexists.   Sword, supra; Jeter  v.  McGinty  Mech.,  62  Ark.  App.  53,  968  S.W.2d  645 \n(1998).  The existence of a causal connection is a question of fact for the Commission.  \n\nMcMURTRY – G704530 & G800411 \n \n10 \n \nKoster v. Custom Pak & Trissel, 2009 Ark. App. 780, 2009 Ark. App. LEXIS 947.  It is \ngenerally a matter of inference, and possibilities may play a proper and important role \nin establishing that relationship.  Osmose Wood Preserving v. Jones, 40 Ark. App. 190, \n843  S.W.2d  875  (1992).    A  finding  of  causation  need  not  be  expressed  in  terms  of  a \nreasonable   medical   certainty   where   supplemental   evidence   supports   the   causal \nconnection.  Koster, supra; Heptinstall v. Asplundh Tree Expert Co., 84 Ark. App. 215, \n137 S.W.3d 421 (2003). \n Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Claimant  has  the  burden \nof  proving  by  a  preponderance  of  the  evidence  that  he  sustained  a  compensable \nconsequence.  This standard means the evidence having greater weight or convincing \nforce.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove \nBarium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to \nthe  Commission.   White  v.  Gregg  Agricultural  Ent.,  72  Ark.  App.  309,  37  S.W.3d  649 \n(2001).    The  Commission  must  sort  through  conflicting  evidence  and  determine  the \ntrue facts.  Id.  In so doing, the Commission is not required to believe the testimony of \nthe  claimant  or  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact \nonly those portions of the testimony that it deems worthy of belief.  Id. \n\nMcMURTRY – G704530 & G800411 \n \n11 \n \n Discussion.  In my 2019 opinion, I analyzed Claimant’s alleged left hip injury as \nfollows: \n In  his  testimony,  Claimant–who  completed  the  eleventh  grade  and \nhas a graduate equivalency degree–related that he works for Respondent \nVilonia  Waterworks  Association  (“Vilonia  Waterworks”)  as  a  Grade  4 \nWater Operator.  He described his job there as follows: \n \nWe do connects, meaning–or tickets, meaning that, you know, like \nconnects, turn people’s water on and off, seeing if they have a leak.  \nJust  anything  a  customer  has  a  question  about  their  water,  we  go \nout  there  and  check.    If  we  have  a  leak  on  our  line,  we  have  two \ncrews  of  trackhoes,  and  we  go  out  there  and  dig  and  fix  water \nleaks.  Also set meters for new houses, new constructions, set new \nmeters for that.  We also read meters.  So every month, around the \n26\nth\n of  every  month,  we  read  meters.    We  have  over–right  around \n10,000  meters.    I  believe  we  have  five  or  six  routes.    My  route  is \n1,400 meters.  Other than that, just anything that needs to be done \nregarding water. \n \nAs  the  parties  have  stipulated,  he  was  involved  in  a  work-related  motor \nvehicle accident on June 26, 2017.  Claimant described what occurred: \n \nMe and a co-worker were reading meters, and we were headed to \nthe next meter and a lady pulled out of her driveway as–she pulled \nout  the  opposite  way  we  were  going.    We  were  headed  east;  she \nwas headed west.  And it’s a narrow road, and she just pulled out \nwithout  looking,  and  I pushed her back  in  her  driveway, and  I  kind \nof  bounced  around,  hit  my  knees  on  the  truck    .  .  .  [s]o  it  was \nbasically a head-on collision with her.  I pushed her out of the way \nand  ended  up  into  the–I hit two trees, and that’s where the truck \nstopped. \n \nHis truck’s speed at the time of the collision was approximately 40 to 45 \nmiles  per  hour.   The  force  of  the  impact  totaled both  vehicles;  it  knocked \nthe  front  axle  off  of  the  Vilonia  Waterworks  vehicle  and  caved  in  the  left \nside.  Claimant added: \n \nI believe that [being stricken by the side mirror, which was sheered \noff by the impact] might’ve knocked me out just for a split second, \nthe reason why I couldn’t stop before hitting the trees.  During that \n\nMcMURTRY – G704530 & G800411 \n \n12 \n \ntime,  I  was  bouncing  up  and  down.    I  hit  my  knee  on  the–my  left \nknee  on  the  dash,  on  the  under  part  of  the  dash.    I  was  jerked \naround.  I had my seatbelt on.  I was jerked around, going back and \nforth because of the collision with the vehicle and then also with the \ncollision  with  the  tree.    And  I  was  in  all  different  types  of  positions \nbecause  of  the  impact.    I  bounced  up  on–I  bounced  up,  nearly  hit \nmy head on top of the roof of the truck. \n \nHis  knee  ended  up  nearly  touching  his  chest–stopped  only  by  the  dash.  \nAt  the  same  time,  Claimant  was  hunched  over  because  his  seat  belt  did \nnot catch right away. \n \n Claimant  is  29  years  old  and  has  led  an  active  life.    Prior  to  the \nhead-on  collision,  he  never  had  undergone  any  treatment  of  his  hip.    He \nwas  able  to  walk  and  run  without  difficulty.    Moreover,  he  was  able  to \nperform the physical aspects of his job without any problems.  Jeff Ruple \nand  Josh  McReynolds,  his  supervisors,  and  the  General  Manager  of  the \nwaterworks, Cecil McMurtry, confirmed this, with McReynolds stating that \nbefore the head-on collision, Claimant “was one of the first people to—he \nwould  knock  people  out  of  the  way  to  get  down  to  be  the  one  to  fix  the \nleak.”  He had no difficulty lifting heavier objects at that point in time.  The \nelder McMurtry concurred, stating that his son (and Ruple) regularly had to \nwork extra hours on the weekend with no problems. \n \n After the accident, he treated with, inter alia, Dr. Justin Seale.  This \ntreatment  included  physical  therapy.    While  he  was  having  difficulty \nwalking after the wreck, it was during the second round of therapy that he \nnoticed a problem with his left hip.  He related: \n \nI had trouble walking and had a little bit of pain, but it wasn’t that \nbad until the second physical therapy, because I was released from \n[Dr.]  Reynolds  then  [concerning  the  left  shoulder],  and  she  [the \ntherapist]  focused  all  on  my  back  this  time.    So  I  was  doing \nexercises for my back, which meant different–since I was no longer \ndoing  the  shoulder  exercises,  so  that  changed  where  I  was  lifting \nmy leg, both legs, and having to like go knee to chest for my back \nstrengthening and a lot more like being on my knees and stretching \nout my legs and stuff like that for strengthening my back, and that’s \nwhen I noticed, the first day of the second physical therapy, that’s \nwhen I noticed something definitely was wrong with my hip.  I then \ntried to call Patrice Baker [the adjustor]. \n \n\nMcMURTRY – G704530 & G800411 \n \n13 \n \nIn  explaining  his  symptoms,  he  described  experiencing  an  “agonizing \npain” in the area of his left hip and groin.  He denied having an accident or \nany  type  of  injury  between  the  time  of  the  collision  and  the  time  he  first \nexperienced this sensation in physical therapy.  Ruple agreed with this in \nhis testimony. \n \n After  multiple  failed  attempts  to  reach  Baker,  which  began  in  the \nfirst  or  second  week  of  September  2017,  Claimant  finally  heard  from  her \none  week  before  his  scheduled  return  visit  to  Dr.  Seale  on  October  23, \n2017.  She told him to bring up the matter with Seale.  He continued: \n \nThe  exercises  that  bothered  me  as  far  as  my  hip,  and  I  was  still \ndoing the lifting of the weights and stuff, that was part of it also, but \nI would lay on my back and I would go knee to chest with my legs, \nand I just couldn’t do it.  I could do it with my right leg, not my left \nleg.  I mean, I couldn’t do it.  I was in a tremendous amount of pain \nwhenever  I  did  .  .  .  So  after  that  first  day  of  physical  therapy,  I \nmissed  the  next  two  physical  therapy  dates  because  my  hip  was \nweak and I was in pain and I just couldn’t do the exercises. \n \nMore weakness and difficulty walking coincided with this therapy. \n \n Once  Claimant  presented  to  Seale  with  his  left  hip  problem,  the \ndoctor  had  him  undergo  an  MRI.    This  test  revealed,  inter  alia,  a  labral \ntear.  Seale referred Claimant to Dr. James Tucker.  After their November \n7,  2017  visit—during  which  time  the  MRI  was  discussed—Tucker  had \nClaimant return in three months.  He released Claimant to full duty as well.  \nClaimant  acknowledged  that  as  reflected  in  the  record  of  that  visit,  Dr. \nTucker  informed  him  that  his  hip  condition  was  not  a  work-related  injury.  \nHowever, he denied that Dr. Seale told him this.  He did acknowledge that \nSeale wrote in the record that “[Claimant] and his mother understand that \nthis [the hip condition] may not be related to his work injury.” \n \n During this interim—from the November 7, 2017 release by Tucker \nuntil  the  work-related  incident  on  January  11,  2018—Claimant  worked.  \nAsked to describe his condition during that time, he replied:  “Even though \nI was on—even though I wasn’t on restricted duties, I did not do my full job \n. . . I was still weak and had difficulty walking, getting in and out of trucks, \ndoing shovel work.  Everything that my job is I had trouble—I had difficulty \ndoing.”  Co-workers  assisted  him.    He  was  not  able  to  drive  a  vehicle  to \nread  meters,  because  it  required  him  to,  among  other  things,  exit  the \nvehicle left leg-first.  But he was able to ride in the front of the vehicle on \n\nMcMURTRY – G704530 & G800411 \n \n14 \n \nthe  right  side  and  read  meters  on  the  right  side  of  the  street.    The  elder \nMr. McMurtry and McReynolds corroborated Claimant’s testimony that he \nwas  having  difficulty  doing  his  job  after  he  returned  to  work  following  the \ncollision.  Mr. McMurtry testified that during this period, Claimant’s “stride \nwas  shorter.    From  what  I  noticed,  he  kind  of  favored–favored  that  [left] \nleg.” \n \n Claimant  returned  to  Dr.  Tucker  in  February  2018.    He  scheduled \nClaimant for a CT scan of the hip.  Thereafter, on March 5, 2018, Tucker \nperformed  hip  surgery  to  repair  the  torn  labrum.    Claimant  returned  to \nwork on July 22, 2018.  But because he was experiencing numbness and \ntingling  going  down  his  leg,  he  went  back  to  the  doctor.    Dr.  Tucker \nperformed another hip surgery on November 19, 2018. \n \n The  medical  records  in  evidence  reflect  that  on  October  23,  2017, \nClaimant told Dr. Seale that “[d]uring therapy he developed anterior hip \npain with the exercises.  He does report some hip pain at the time of the \naccident but is unsure if it is anterior hip pain.”  Seale recommended an \nMRI  of  the  left  hip.    Per  Dr.  Michael  Kendrick,  who  read  the  MRI,  it \nshowed: \n \nIMPRESSION: \nQ. No acute findings. \nR. Possible  healed  fracture  versus  sessile  osteochondroma  at \nthe medial aspect of the femoral neck. \nS. Lack  of  femoral  head  neck  junction  cut  back  of  the  left  with \nan  associated  anterior  superior  labral  tear.    These  findings \ncan   be   seen   with   femoral   acetabular   impingement,   if \nclinically compatible. \n \n Dr.  Seale  saw  Claimant  on  October  30,  2017, [and] stated  that  he \n“has normal findings in the left hip.” \n \n Claimant   told   Dr.   Tucker   on   November  7,   2017  that   his   hip \nsymptoms  began  with  the  June  26,  2017  motor  vehicle  accident.    X-rays \nof  the  hip  were  normal.    The  doctor  assessed  Claimant  as  having \nfemoroacetabular  impingement  and  osteochondroma  in  the  left  hip  and \nwrote: \n \nThere  is  no  acute  injury  to  the  hip  related  to  his  work  injury.    We \nwill  release  him  to  full  duty.    I  will  see  him  back  in  3  months,  at \nwhich time his workers’ comp issues will be resolved.  We will then \n\nMcMURTRY – G704530 & G800411 \n \n15 \n \nproceed    with    left    hip    arthroscopy    with    labral    repair    and \nfemoroplasty.  Again, this is not related to his work injury. \n \n On  February  9,  2018  Tucker  recommended  that  he  undergo  a  CT \nscan of the hip and stated:  “At his last appointment, I discussed with \nBrandon  that  his  issues  were  unrelated  to  his  work  injury  but  that  they \nwould need to be addressed at a later point.”  The CT scan, performed \nthat  same  day,  was  found  by  Dr.  Kathleen  Sitarik  to  show  “[b]ony \nexcrescence  compatible  with  osteochondroma  medial  aspect  femoral \nneck.”  Tucker on February 13, 2018 wrote that the scan showed a “CAM \nlesion,   indicative   of   CAM-type   femoroacetabular   impingement   and   a \nbenign osteochondroma.”  They agreed to proceed with surgery. \n \n Dr.  Tucker  operated  on  March  5,  2018,  performing  a  femoroplasty \nand   a   labral   repair.      While   the   pre-operative   diagnosis   was   only \nfemoroacetabular  impingement,  left  hip,  the  post-operative  diagnoses \nspecified  that  the  impingement  was  a  CAM-type;  Tucker  added  that \nClaimant had a labral tear of the left hip.  As of July 20, 2018, the doctor \nprescribed an additional two months of physical therapy. \n \n Claimant  again  presented  to  Dr.  Tucker  with  left  hip  pain  on \nOctober  2,  2018.   He ordered  a  second  CT scan.    This  scan, per Tucker \non  October  17,  2018,  “show[ed]  a  very  large  sessile  osteochondroma, \nwhich is likely causing impingement of the iliopsoas tendon.”  A second \nsurgical  procedure  took  place  on  November  19,  2018.    In  that  instance, \nDr. Tucker performed a diagnostic arthroscopy of the hip and a resection \nof  an  osteochondroma  on  the  femoral  neck.    Claimant  reported  to  the \ndoctor on January 4, 2019 that about a week prior, he experienced left hip \npain.  But an epidural steroid injection into the back at that time alleviated \nit.  Tucker gave Claimant work restrictions of no squatting or heavy lifting. \n \n In a return visit to Dr. Tucker on May 24, 2019, six months after the \nsecond  surgery,  the  doctor  examined  him  and  wrote:   “The labral tear \nthat  the  patient  had  that  we  treated  with  repair  and  snip,  was \nconsistent with a hyperflexion injury from a motor vehicle accident.”  \n(Emphasis added) \n \n In  this  case,  the  evidence  is  clear  that  Claimant  has  objective \nfindings of an injury to his left hip in the form of, inter alia, a labral tear.  I \ncredit  Claimant’s  testimony  that  the  mechanism  of  his  injury  was  the \nstipulated work-related head-on motor vehicle collision that took place on \nJune   26,   2017.      The   incident   is   identifiable   by   time   and   place   of \n\nMcMURTRY – G704530 & G800411 \n \n16 \n \noccurrence.  Moreover, the hip injury caused internal or external physical \nharm to his body  and required medical services. \n \n Respondents  have  attempted  to  cast  doubt  on  the  above,  arguing \nthat  Claimant  did  not  complain  about  his  hip  until  around  three  months \nafter the accident.  But the October 23, 2017 report by Dr. Seale confirms \nthat Claimant told him that he experienced “ some hip pain at the time of \nthe accident but is unsure if it is anterior hip pain.”  He also told Dr. Tucker \nhis  belief  that  the  hip  condition  was  the  result  of  the  accident.    I  credit \nClaimant’s testimony that he was not having any hip problems prior to the \naccident.    In  addition,  I  credit  his  testimony  that  he  had  been  having \ntrouble walking since the accident.  As the evidence reflects, the hip injury \nmerely became more pronounced later, during physical therapy, when the \nmaneuvers   being   performed   then—manipulation   of   the   left   lower \nextremity—made it clear that something was wrong. \n \n Respondents  have  also  highlighted  statements/opinions  by  certain \nof  Claimant’s  treating  physicians  in  the  medical  records  to  show  that \nClaimant’s hip injury is not work-related.  First, they have pointed out that \nDr. Seale on October 30, 2017 stated that the hip condition “may not be \nrelated  to  his  work  injury.”    Certainly,  this  does  not  conform  with  the \nstandards  governing  medical  opinions  regarding  causation.   See  infra.  \nBut curiously, Seale also stated that the hip MRI was “normal,” when it \ncertainly was not.  It showed, inter alia, a labral tear.  Kendrick, who read \nthe MRI, wrote that a labral tear “can be seen with femoral acetabular \nimpingement, if clinically compatible.”  But as Dr. Tucker, who actually \noperated on the hip, wrote, “[t]he labral tear that the patient had that we \ntreated with repair and snip, was consistent with a hyperflexion injury from \na motor vehicle accident.”  Claimant’s testimony at the hearing concerning \nwhat  occurred  when  his  work  truck  collided  with  the  other  vehicle  (and, \nthereafter,  trees)  on  June  26,  2017  readily  show  that  he  hyperflexed  his \nleft hip at that time. \n \n Respondents  have  attacked  the  May  24,  2019  opinion  by  Tucker \nquoted above, asserting that it was not given within a reasonable degree \nof  medical  certainty.    In Cooper  v.  Textron,  2005  AWCC  31,  Claim  No. \nF213354   (Full   Commission   Opinion   filed   February   14,   2005),   the \nCommission  addressed  the  standard  when examination  medical  opinions \nconcerning causation: \n \nMedical evidence is not ordinarily required to prove causation, i.e., \na  connection  between  an  injury  and  the  claimant's  employment, \n\nMcMURTRY – G704530 & G800411 \n \n17 \n \nWal-Mart  v.  Van  Wagner,  337  Ark.  443,  990  S.W.2d  522  (1999), \nbut if a medical opinion is offered on causation, the opinion must be \nstated  within  a  reasonable  degree  of  medical  certainty.    This \nmedical   opinion   must   do   more   than   state   that   the   causal \nrelationship   between   the   work   and   the  injury   is   a  possibility. \nDoctors’ medical  opinions  need  not  be  absolute.    The  Supreme \nCourt has never required that a doctor be absolute in an opinion or \nthat  the  magic  words “within  a  reasonable  degree  of  medical \ncertainty” even  be  used  by  the  doctor;  rather,  the  Supreme  Court \nhas simply held that the medical opinion be more than speculation; \nif the doctor renders an opinion about causation with language that \ngoes   beyond   possibilities   and   establishes   that   work   was   the \nreasonable  cause  of  the  injury,  this  evidence  should  pass  muster.  \nSee, Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d \n760  (2001).    However,  where  the  only  evidence  of  a  causal \nconnection  is  a  speculative  and  indefinite  medical  opinion,  it  is \ninsufficient  to  meet  the  claimant's  burden  of  proving  causation.  \nCrudup v. Regal Ware, Inc., 341, Ark. 804, 20 S.W.3d 900 (2000); \nKII  Construction  Company  v.  Crabtree,  78  Ark.  App.  222,  79 \nS.W.3d 414 (2002). \n \nRespondents are correct that the above statement–particular the phrasing \n“was consistent”—falls short of the standard applied to causation opinions.  \nBut  while  I  cannot  credit  the  above  as  an  opinion  with[in] a  reasonable \ndegree  of  medical  certainty  that  the  accident  caused  the  torn  labrum—\nwhich  was  not  the  opinion  that  the  doctor  was  offering—I nonetheless \ncredit  the  opinion  that  he  did  give:    that  the  injury  Claimant  suffered  is \nconsistent with  hyperflexion.    The  Commission  is  authorized  to  accept  or \nreject  a  medical  opinion  and  is  authorized  to  determine  its  medical \nsoundness and probative value.  Poulan Weed Eater v. Marshall, 79 Ark. \nApp.  129,  84  S.W.3d  878  (2002).    The  evidence  preponderates  that \nClaimant suffered a hyperflexion injury in the June 26, 2017 accident that \nresulted in the torn labrum. \n \n Also,  Respondents  have  posited  that  the  above  opinion  is  not \nworthy of credit because “[i]t was also written more than fourteen months \nafter the [surgery] and contradicts Dr. Tucker’s own testimony at the time \nof the surgery.”  Respondents’ Brief at 2.  Nothing before me shows that \nTucker  has  given  any  testimony.    Furthermore,  the  opinion  statement \nconcerning hyperflexion was the only opinion offered by the doctor on this \nmatter   since   he   actually   viewed   the   hip   during   surgery.      That   the \nstatement was given much later is of no consequence; Tucker made it in \n\nMcMURTRY – G704530 & G800411 \n \n18 \n \nthe  course  of  an  appointment  with  Claimant,  during  which  he  examined \nhim and had the medical records.  Respondents’ arguments on this point \nare thus without merit. \n \n As  for  the  other  conditions  of  Claimant’s  hip  disclosed  by  the \nsurgery  and  radiological  findings that  may  have  been  chronic  and/or  pre-\nexisting—the   femoroacetabular   impingement   and   a   benign   osteo- \nchondroma—an  employer  under  the  Arkansas  Workers’  Compensation \nAct   takes   an   employee   as   the   employer   finds   him.      Employment \ncircumstances  that  aggravate  pre-existing  conditions  are  compensable.  \nNashville Livestock Comm. v. Cox, 302 Ark. 69, 787 S.W.2d 64 (1990).  A \npre-existing   infirmity   does   not   disqualify   a   claim   if   the   employment \naggravated,  accelerated,  or  combined  with  the  infirmity  to  produce  the \ndisability  for  which  compensation  is  sought.   St.  Vincent  Med.  Ctr.  v. \nBrown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).  “An aggravation, being a \nnew  injury  with  an  independent  cause,  must  meet  the  requirements  for  a \ncompensable  injury.”   Crudup  v.  Regal  Ware,  Inc.,  341  Ark.  804,  20 \nS.W.3d  900  (2000);   Ford  v.  Chemipulp  Process,  Inc.,  63  Ark.  App.  260, \n977 S.W.2d 5 (1998).  This includes the prerequisite that the alleged injury \nbe  shown  by  medical  evidence  supported  by  objective  findings.   See \nHeritage  Baptist  Temple  v.  Robison,  82  Ark.  App.  460,  120  S.W.3d  150 \n(2003).  These standards have been met here. \n \n In  sum,  Claimant  has  proven  by  a  preponderance  of  the  evidence \nthat he sustained a compensable injury by specific incident to his left hip. \n \n. . . \n \n Claimant has proven by a preponderance of the evidence that he is \nentitled    to    reasonable    and    necessary    medical    treatment    of    his \ncompensable  left  hip  injury  as  set  out  in  the  above-quoted  statute.  \nMoreover, I have reviewed Claimant’s Exhibit 1 and Respondents Exhibit \n1,  and  I  find  that  all  of  the  treatment  of  the  injury  reflected  therein  was \nreasonable and necessary. \n \n In  turn,  the 2022  opinion,  in  which  Claimant sought  additional  treatment  for  his \nhip, contains the following analysis: \n With   respect   to   his  hip,   Claimant   reported   to   Dr.   Tucker   on \nNovember 22, 2019, that he was “doing fairly well overall.”  X-rays showed \nno arthritic changes.  Tucker wrote that Claimant was “doing well.” \n\nMcMURTRY – G704530 & G800411 \n \n19 \n \n \n On  March  11,  2020,  Claimant  began  treating  with  Chad  Bryant, \nD.C.  A series of 20 visits are documented in the records in evidence.  He \npresented  with  lower back pain  of  7/10  in  intensity  that began  in  January \n2018 after he lifted a heavy pump at work.  Claimant informed Bryant that \nhis pain started to worsen in January 2020.  He also complained of left hip \npain that had “c[o]me on gradually” but was “progressively getting worse.”  \nClaimant rated his hip pain as 4/10.  Dr. Bryant palpated spasms on both \nsides of the lumbar and sacral spine, along with subluxation at L1, L4 and \nL5.  The treatments that Bryant recommended and administered included, \ninter alia, chiropractic adjustments and electric muscle stimulation. \n \n On  June  30,  2020,  Claimant  underwent  an  intra-articular  steroid \ninjection  by  Dr.  Victor  Vargas  into  the  left  coxa  femoral  joint.    He  also \nunderwent an MRI of the left hip, which Dr. Tucker wrote showed no signs \nof a recurrent labral tear.  The doctor added:  “We will put him in a light-\nduty  no  climbing  extended  standing  pushing  or  pulling  [sic].”    Later, \nClaimant  reported  to  Tucker  that  the  injection  only  gave  him  two  days  of \nrelief. \n \n Dr.  Tucker  recommended  a  diagnostic  arthroscopy  of  the  left  hip \nwith  a  resection  of  capsular  scarring.    This  procedure  took  place  on \nAugust 5, 2020.  Claimant was given post-operative diagnoses of a labral \ntear, capsular labral adhesions, and femoral acetabular impingement.  The \noperative  notes  reflect  that  Tucker  found  the  labrum  was  torn  anteriorly, \nand also that “[t]here was dense scarring between the labrum and capsule \n. . . .”  Claimant told Tucker on December 3, 2020, that “his left hip feels \nabout the same or even a little worse than before surgery.”  The report \nalso reads: \n \n[Claimant]  indicates  he  was  initially  much  better  after  surgery  but \nnow is having increasing problems[.  H]e has pain with flexion and \ninternal  and  external  rotation[.    H]e  has  limited  range  of  motion \n[and]  has  welling  in  the  lower  extremity  along  with  burning  type \npain. \n \nThe doctor noted that x-rays of the hip did not show advancing arthritis or \njoint space narrowing.  He recommended a bone scan to rule out complex \nregional pain syndrome, along with another MRI of the joint.  Tucker gave \nClaimant restrictions of “[n]o lifting, squatting, pushing, pulling or twisting.”  \nNeither   the   bone   scan   nor   the   MRI   showed   any   signs   of  obvious \npathology, per Dr. Tucker.  The doctor on December 17, 2020, wrote:  “At \n\nMcMURTRY – G704530 & G800411 \n \n20 \n \nthis  point  I  think  the  only  thing  that  is  going  to  improve  [Claimant’s] \nsymptoms  is  getting  his  core  and  hip  in  better  shape  to  stabilize  and  D \nrotate the pelvis’s [sic] . . . .” \n \n. . . \n \n On October 8, 2021, Claimant reported to Dr. Tucker that “he has \nbeen  having  hip  pain  again  for  the  past  3  to  4  months  and  it  just  keeps \nprogressively getting worse.”  The report reads in pertinent part: \n \nAssessment/Plan \nHe presents back is continued to have pain in his left hip he has an \nosteochondroma  which  we  have  done  arthroscopic  resection  on \nbecause  of  the  impingement  caused  however  he  still  has  bone \nremaining posterior medially from the osteochondroma.  His pain is \npredominantly  in  the  groin.    He  has  numbness  in  the  right  leg \nextending from the head of the fibula distally distribution is also has \nweakness and difficulty with dorsiflexion of the foot. \n \n. . . \n \nWe  discussed  that  if  we  are  going  to  remove  any  more  of  the \nosteochondroma  it  would  have  to  be  done  with  an  open  surgery.  \nWe need a CT scan to assess that this we[’]re going to obtain a CT \nscan  of  the  left  hip    He  also  appears  to  have  peroneal  nerve \ncompression of the fibular head so we[’]re going to obtain an EMG \nnerve conduction study.  We will follow him up with a telemedicine \nvisit once that is complete.  [Sic] \n \nThat   same   day,   Tucker   assigned   Claimant   restrictions   of   no   lifting, \npushing, pulling, squatting, climbing, or bending.  Later, on November 17, \n2021, Tucker wrote: \n \nI saw Brandon McMurtry in the office today. \n \nPlease  excuse  Brandon  for  11/27/2021.    It  is  my  medical  opinion \nBrandon   needs   to   undergo   surgery   for   a[n]   osteochondroma \nresection. \n \nHe is scheduled for a left femoral neck osteochondroma resect [f]or \n12/30/2021[.] \n \n\nMcMURTRY – G704530 & G800411 \n \n21 \n \n On December 30, 2021, Dr. Tucker operated as he outlined above, \nperforming an open resection of a femoral osteochondroma in the femoral \nneck  of  the  left  hip.    The  surgery  confirmed  the  diagnosis  of  this \nosteochondroma.    Tucker  took  Claimant  off  work  for  three  months  in  a \nnote  dated  January  3,  2022.    On  January  12,  2022,  he  amended  this  to \nrestart the three-month period.  The reason for this is because on January \n13, 2022, Dr. Eric Gordon had to operate on the hip to drain and debride a \nhematoma that had developed on its anterior aspect.  Claimant reported to \nTucker on January 18, 2022, that he was “doing okay.” \n \n. . . \n \n When Claimant went back to Tucker’s office on March 11, 2022, \nand saw Tristan Jenkins, P.A., he reported that he “doing okay.”  But his \npain had not improved.  Jenkins wrote: \n \nContinued  left  hip  pain.    He  has  had  5  previous  surgeries  prior  to \nthis  including  arthroscopies  of  the  left  hip.    He  is  worried  he  has \nanother  labral  tear.    I  offered  an  intra-articular  steroid  injection \ntoday  but  he  says  he  had  1  of  these  about  6  months  ago  that  did \nnot give any pain relief.  He would like to move forward with an MRI \nto evaluate for repeat labral tear.  We will get this done and see him \nback after this. \n \nPer the report, the March 24, 2022, MRI showed: \n \nLow-grade  articular  cartilage  loss  in  the  left  hip  joint  with  small \ncurtain osteophytes. \n \nNo evidence for labral tear or re-tear. \n \nSmall left hip joint effusion is likely reactive. \n \nPostsurgical artifact and/or scarring within the anterior soft tissues.  \nMild   apparent   edema   in   the   rectus   femoris   musculotendinous \njunction is either artifactual or secondary to low-grade strain. \n \nMild left iliopsoas and gluteus minimus tendinosis. \n \nTrace  edema  in  the  left  trochanteric  bursa  is  likely  reactive  or \nsecondary to low-grade bursitis. \n \n\nMcMURTRY – G704530 & G800411 \n \n22 \n \nTucker reviewed this and wrote on March 29, 2022: \n \nHis  MRI  shows  no  sign  of  a  recurrent  tear  in  the  left  hip  it  does \nshow  some  muscle  atrophy  and  tendinitis  .  .  .  [b]ecause  he  does \ncontinue  to  have  some  muscle  atrophy  we  are  going  to  continue \nhim in therapy and limit him to no climbing or lifting over 25 pounds \nwill work on getting his hip strengthening. \n \nTucker  on  April  6,  2022,  gave  Claimant  restrictions  of  no  climbing, \nsquatting,  twisting,  excessive  bending,  or  lifting  of  over  25  pounds.    That \nsame day, Tucker wrote a letter to Amanda Blair of Respondent Arkansas \nMunicipal League that reads: \n \nIn  regards  to  your  letter  dated  January  3,  2022,  concerning  the \nabove patient [Claimant], please find my answers below: \n \nThe injury from 2017 on the left hip is not the cause of the need for \nsurgery and is not related to the right leg numbness and weakness.  \nOther  than  the  patient  attending  two  physical  therapy  sessions  at \nour  office,  there  was  no  treatment  or  physician  visits  between \nDecember  2020  and  October  2021.    There  was  no  new  injury \nreported  or  noted  from  the  December  2020  visit  to  the  October \n2021  visit.    My  treatment  of  the  left  hip  on  Mr.  McMurtry  has  not \nbeen related to the injury in 2017. \n \nIMPAIRMENT RATING \nThe patient was placed at MMI as of December 2020.  According to \nthe  AMA  Guides  to  the  Evaluation  of  Permanent  Impairment, \nFourth Edition, Mr. McMurtry has a 0% partial impairment of the left \nhip  associated  with  his  work-related  injury.    These  statements  are \nmade with a reasonable degree of medical certainty. \n \n Per the medical records in evidence, Dr. Tucker last saw Claimant \non July 13, 2022.  He wrote: \n \n[Claimant] presents back today with continued left hip pain we have \na recent MRI which shows no signs of a tear only mild degenerative \nchanges.  On exam today he is tender over the greater trochanteric \nbursa  and has a  snapping  iliopsoas.    We discussed this  we[’]re \ngoing  to  get  him  set  up  for  a  greater  trochanteric  bursa  injection \nand possibly an iliac psoas injection later.  We obtain[ed] 4 view x-\nrays  today  that  showed  no  progression  of  any  of  the  degenerative \n\nMcMURTRY – G704530 & G800411 \n \n23 \n \nchanges  and  no  recurrence  of  his  impingement.    He  has  been \ntreated   long-term   with   hydrocodone  for   his   back   and   hip.      I \ndiscussed this with him today we cannot treat long-term pain he will \nhave  to  see  his  pain  physician  for  this.    I  am  giving  him  a \nprescription   for   Talwin   NX   until   he   follows   up   with   his   pain \nphysician.  We are also going to set him up for the injections. \n \n. . . \n \n As for the left hip treatment, I credit Dr. Tucker’s opinion that the \ncompensable June 26, 2017, injury was not the cause of Claimant’s need \nfor  surgery.   See  Poulan  Weed  Eater, supra.    The  context  clearly  shows \nthat  the  doctor  is  referring  to  the  December  30,  2021,  and  January  13, \n2022,  surgical  procedures.    In  rendering  this  opinion,  Tucker  correctly \npointed out that there was an approximate ten-month gap in hip treatment, \nfrom December 2020 to October 2021, save two therapy appointments.  In \nmaking this finding, I am mindful of Claimant’s testimony that he did not \nre-injure  his  hip  during  this  interim  (which  his  father  corroborated),  and \nthat the reason for the gap was his belief that nothing more could be done \nfor him.  But I note that the medical report from October 8, 2021, reflects \nthat Claimant at that time only “ha[d] been having hip pain again for the \npast 3 to 4 months . . . .”  Also, the December 17, 2020, report by Tucker, \ncited above, supports the doctor’s opinion.  Then, an MRI and bone scan \nthat  had  been  performed  did  not  “show  any  signs  of  any  obvious \npathology.”  In fact, “[t]he MRI show[ed] the hip to be very stable as far as \narticular cartilage loss or labrum.”  Therefore, Claimant has proven by a \npreponderance  of  the  evidence  that  only  the  treatment  of  his  left  hip  in \nevidence  that  occurred  prior  to  October  8,  2021,  was  reasonable  and \nnecessary. \n \nIt bears repeating:  the above decisions are binding on this proceeding under the Law \nof the Case Doctrine. \n In the most recent hearing, Claimant testified that he received a referral from Dr. \nGoree  to  Dr.  O’Malley  concerning  his  left  hip.    Within  a  month  of  his  first  seeing \nO’Malley, Claimant underwent surgical replacement of his hip.  The following exchange \ntook place during his direct examination: \n\nMcMURTRY – G704530 & G800411 \n \n24 \n \nQ. And you were ready, willing, and able to do the operative procedure \nhe recommended, were you not? \n \nA. I was. \n \nQ. Had your hip gotten any better over the last couple of years? \n \nA. Not until this last surgery. \n \nQ. Okay.  Was the way your hip felt pretty much the same as it felt \nwhen Dr. Tucker got through with you? \n \nA. Can you say that one more time? \n \nQ. Was your hip about the same when you saw Dr. O’Malley as it \nwas back when Dr. Tucker treated you? \n \nA. Yes. \n \nQ. Did you have any accidents in the meantime—between the last \ntime you saw Dr. Tucker and when you saw Dr. O’Malley, had \nyou  had  [any]  kind  of  accident  where  you  fell  or  injured  your \nhip? \n \nA. No. \n \nQ. Had  your  hip  been  just  pretty  much  the  same  the  last  two \nyears? \n \nA. (No audible response) \n \nQ. Before  you  saw  Dr.  O’Malley,  had  your  hip  been  about  the \nsame for two years? \n \nA. Yes.  Before O’Malley, yes. \n \n(Emphasis added) \n\nMcMURTRY – G704530 & G800411 \n \n25 \n \n On  cross-examination, Claimant acknowledged that Dr. O’Malley has given no \nopinion  as  to  whether  his  need  for  the  hip  replacement  surgery  was  related  to  his \ncompensable left hip injury.  Claimant paid for O’Malley’s treatment on his own. \n The medical records in evidence reflect that on April 4, 2024, Claimant first saw \nDr. O’Malley.  The report of that visit reads in pertinent part: \nHistory of Present Illness:  Brandon Baxter McMurtry is a 34 y.o. year old \nmale  patient  presents  as  a  new  patient  for  evaluation  of  the  left  hip.  \nPatient  has  a  complex  history  including  5\n1\n previous  hip  surgeries.   He \nreports this started after a MVC in 2017.  He had left hip pain following this \nbut  no  fractures  were  identified.    He  was  later  worked  up  and  diagnosed \nwith  a  hip  labral  tear  and  underwent  labral  repair  in  March  2018  with  Dr. \nTucker.    He  did  not  improve  following  this  and  this  was  repeated  in \nNovember 2018.  He most recently had a hip scope done towards the end \nof 2020.  He reports his pain he feels now is the same as his pain from his \ninitial labral tear injury.  He has pain in the posterior hip but most of it is in \nthe groin.  Does not radiate past the knee.  In physical therapy, abduction \nexercises make his pain worse.  He has had a previous hip injection that \nhelped his pain for about 1 week.  He has history of HYN and smokes ½ \nPPD. \n \n. . . \n \nPhysical Examination: \n \n. . . \n \nMusculoskeletal: \nLEFT   HIP:    Inspection   no   ecchymosis,   well   healed   previous   portal \nincisions.    TTP  over  the  greater  trochanter.   ROM  normal  flexion, normal \nextension,   normal   internal   rotation,   normal   external   rotation,   normal \nadduction.    Significant  pain  with  rotation  of  the  hip  and  deep  flexion.  \nStrength 5/5  hip  flexors,  5/5  hip  extensors,  5/5  hip  abductors,  5/5  hip \nadductors.  Positive FABERS test. \n \n \n \n1\nAs discussed supra, those surgeries took place on March 15, 2018, November \n19, 2018, August 5, 2020, December 30, 2021, and January 13, 2022. \n\nMcMURTRY – G704530 & G800411 \n \n26 \n \n. . . \n \nIMAGING: \nRadiographs of the left hip show a mild cam deformity.  There is a normal \nappearing joint space in the hip.  No signs of acetabular dysplasia. \n \nMRI  arthrogram  of  the  left  hip  shows  minimal  residual  labral  tissue  with \npossible scar tissue around the joint capsule.   \n \nIMPRESSION:    34  yo M  with  left  FAI and  history  of  multiple previous  hip \narthroscopy procedures and persistent left hip pain. \n \nPLAN: \nWe  discussed  treatment  options with  the  patient  including  observation, \ntherapy,   oral   anti-inflammatories,   injections,   advanced   imaging   and \nsurgery. \n \nAt  this  point  we  recommended  trialing  a  diagnostic  left  hip  intra-articular \ninjection  by  our  partner  in  clinic  today.    The  patient  states  his  pain \ncompletely  resolved  following  injection  today.    Therefore  we  think  it  is \nreasonable  to  consider  a  hip  arthroscopy  for  the  left  hip  to  evaluate  the \nlabrum  and  cartilage.    We  will  first  plan  to  obtain  a  CT  for  hip  mapping.  \nWe will start a course of Mobic as well. \n \nA CT scan performed on April 12, 2024, showed the following: \nIntact  and  well  aligned  pubic  symphysis  and  sacroiliac  joints  without \nsignificant degenerative changes. \n \nNo significant soft tissue abnormality is noted. \n \nImpression: \nLower extremity aligned as described above. \n \nA small osseous bump along the anterior aspect of the right femoral head \nneck  junction.    No  evidence  of  cam  morphology  on  the  left  side.    No \nevidence of acetabular over coverage on either side. \n \nBilateral femoral retro torsion.  No evidence of hip dysplasia. \n \n \n\nMcMURTRY – G704530 & G800411 \n \n27 \n \n When Claimant returned to Dr. O’Malley on April 15, 2024, the doctor opined \nthat “[h]e ha[d] failed conservative management of his symptoms.”  Claimant elected to \nproceed with a left hip arthroscopy with labral repair femoroplasty. \n This  surgery—a  left  hip  arthroscopy,  with  revision  of  the  hip  and  labral  repair, \nand  a  revision  femoroplasty—took place on May 15, 2024.  Dr. O’Malley assigned \nClaimant the  same  pre  and  post-operative  diagnoses:    (1)  left hip superolateral  labral \ntear;  and  (2)  femoroacetabular  impingement.   The  operative  notes  indicate  that \nO’Malley found grade 2 chondromalacia of the femoral head, along with “[e]xtensive \ncapsule labral adhesion,” a thickened capsule, “a severe amount of adhesions of the \ncapsule on the labrum,” and a labral tear from the 12:00 to 2:00 position. \n Claimant reported to Dr. O’Malley on May 30, 2024, that he was doing well.  He \nwas  referred  to  physical  therapy.   During  a  July  11,  2024,  follow-up  visit,  Claimant \nstated he was doing well.  The doctor wrote:  “He can keep working hard with physical \ntherapy.” \n I credit Claimant’s testimony that the condition of his left hip at the time Dr. \nO’Malley began seeing him was the same as it was when Dr. Tucker treated him.  This \nis borne out by the medical records in evidence, discussed above.  And as also noted \nabove, following the 2022 proceeding, I credited Tucker’s opinion that the condition of \nClaimant’s hip that necessitated the 2021 and 2022 hip surgeries was not related to his \ncompensable  June  26,  2017,  injury.    Only  the  treatment  occurring  prior  to  October  8, \n2021,  was  reasonable  and  necessary.   Dr. O’Malley has not rendered a causation \n\nMcMURTRY – G704530 & G800411 \n \n28 \n \nopinion.  Therefore, no reason exists to revisit Dr. Tucker’s opinion.  I am unable to find \nthat Claimant has proven under Air Compressor Equip. Co. and Hubley, supra, that he \nsustained an injury to his left hip as a “natural consequence” of either his compensable \nleft hip injury or his compensable back and left shoulder injuries. \nC. Reasonable and Necessary Treatment \n Introduction.    Claimant  has  also  asserted  that  he  is  entitled  to reasonable  and \nnecessary treatment  of the alleged compensable  consequence  injury  to  his  left  hip.  \nThis includes the surgery thereon that was performed by Dr. O’Malley on May 15, \n2024.  Respondents disagree that they should be liable for this treatment. \n Standards.  Arkansas Code Annotated Section 11-9-508(a) (Repl. 2012) states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut  Corp.  v.  Jones,  73  Ark.  App.  158,  40  S.W.3d  333  (2001).    A \n\nMcMURTRY – G704530 & G800411 \n \n29 \n \nclaimant is not required to furnish objective medical evidence of his continued need for \nmedical  treatment.   Castleberry  v.  Elite  Lamp  Co.,  69  Ark.  App.  359,  13  S.W.3d  211 \n(2000). \n Discussion.  Because of the above finding, I cannot find that Claimant is entitled \nto reasonable and necessary treatment of his alleged compensable consequence.  To \nthe extent that Claimant is arguing that the treatment of his hip on and after October 8, \n2021—particularly   his May   15,   2024,   surgery—was   reasonable   and   necessary \ntreatment  of  his  compensable  June 26,  2017,  hip  injury,  Claimant  must  show  that  the \nprocedure  is  causally  related  to  that  injury.   See  Pulaski  Cty.  Spec.  Sch.  Dist.  v. \nTenner,  2013  Ark.  App.  569,  2013  Ark.  App.  LEXIS  601.   But in  accordance  with  the \nFinding of Fact/Conclusion of Law No. 6 in the 2022 opinion, and further based on the \nevidence  that  was  adduced  at  the  most  recent  hearing and  outlined  above, I  cannot \nfind  this.    Consequently,  Claimant  has  not  proven  his  entitlement  to any  of this \ntreatment at Respondents’ expense. \nD. Temporary Total Disability \n Introduction.   Following  the  2022  hearing,  Claimant  was  awarded  temporary \ntotal disability benefits from February 26, 2020, to December 17, 2020.  As part of this \nproceeding, he has contended that he is entitled to additional temporary total disability \nbenefits from  November  1,  2022, to  a date yet  to  be determined.   Respondents have \nargued otherwise. \n\nMcMURTRY – G704530 & G800411 \n \n30 \n \n Standards.   The  compensable  injuries  that  Claimant  suffered—to  his  back,  left \nshoulder  and  left hip—are  all  unscheduled  ones.   See Ark.  Code  Ann.  §  11-9-521 \n(Repl. 2012).  An employee who suffers a compensable unscheduled injury is entitled \nto  temporary  total  disability  compensation  for  that  period  within  the  healing  period  in \nwhich  he  has  suffered  a  total  incapacity  to  earn  wages.   Ark.  State  Hwy.  &  Transp. \nDept.  v.  Breshears,  272  Ark.  244,  613  S.W.2d  392  (1981).    The  healing  period  ends \nwhen  the  underlying  condition  causing  the  disability  has  become  stable  and  nothing \nfurther in the way of treatment will improve that condition.  Mad Butcher, Inc. v. Parker, \n4 Ark. App. 124, 628 S.W.2d 582 (1982).  Also, a claimant must demonstrate that the \ndisability lasted more than seven days.  Id. § 11-9-501(a)(1).  Claimant must prove his \nentitlement  to  temporary  total  disability  benefits  by  a  preponderance  of  the  evidence.  \nFalcon v. NW Med. Ctr., 2019 Ark. App. 6, 567 S.W.3d 893. \n Discussion.  The 2022 opinion contains the following analysis: \n However,  the  question  remains  whether  Claimant  was  still  in  his \nhealing period then regarding any of his compensable injuries.  At the time \nof  his  2019  hearing,  per  his  testimony,  Claimant  had  long  since  been \nreleased  from  treatment  by  Dr.  Kirk  Reynolds  for  his  shoulder.    The \nevidence  shows  that  he  reached  the  end  of  his  healing  period  for  his \nshoulder before February 25, 2020.  Thus, it cannot support his claim for \ntemporary total disability benefits; and Claimant has not cited his shoulder \nin support of this portion of his claim. \n \n Concerning his left hip injury, I credit Dr. Tucker’s opinion that he \nreached   maximum   medical    improvement    as   of    December    2020.  \nSpecifically,  based  on  my  review  of  the  medical  evidence,  I  find  that  he \nreached the end of his healing period on December 17, 2020.  Based on \nthe  copious  evidence  concerning  the  physical  requirements  of  the  job, \nincluding  bending,  twisting,  and  lifting,  Claimant  was  not  capable  of \nperforming  it  because  of  his  hip  problems  once  the  meter  change-out \n\nMcMURTRY – G704530 & G800411 \n \n31 \n \nproject  concluded.    He  has  not  worked  anywhere  since  his  termination; \nand I find that the evidence preponderates that he was totally incapable of \nearning wages during that period.  See Ark. State Hwy. & Transp. Dept. v. \nBreshears,  272  Ark.  244,  613  S.W.2d  392  (1981); Sanyo  Mfg.  Corp.  v. \nLeisure, 12 Ark. App. 274, 675 S.W.2d 841 (1984)(claimant who has been \nreleased to light duty work but has not returned to work may be entitled to \ntemporary  total  disability  benefits  where  insufficient  evidence  exists  that \nthe  claimant has  the  capacity  to  earn  the  same  or  any  part  of  the wages \nhe  was  receiving  at  the  time  of  the  injury).    Therefore,  based  on  his \ncompensable  hip  injury,  Claimant  has  established  his  entitlement  to \ntemporary  total  disability  benefits  from  February  26,  2020,  to  December \n17, 2020. \n \n As  to  whether  he  is  entitled to  temporary total  disability benefits  in \nconnection with his stipulated compensable back condition, I found in the \nprevious opinion that “per the opinion of Dr. Miedema–which  I  credit–he \nreached  the end  of  his  healing period  for his  back  injury  on  February  13, \n2018.”  That opinion, as the parties have stipulated, is binding on this \nproceeding under the Law of the Case Doctrine; and it is res judicata.  See \nThurman  v.  Clarke  Industries,  Inc.,  45  Ark.  App.  87,  872  S.W.2d  418 \n(1994).  Nothing before me shows that he entered another healing period \nregarding   his   back   after   the   above-referenced   date.      Thus,   his \ncompensable  back  condition  does  not  entitle  him  to  temporary  total \ndisability benefits for any period.  Claimant has not met his burden of proof \nhere. \n \nIt bears repeating that the above findings are binding on this proceeding under the Law \nof the Case Doctrine.  See supra. \n The  only  event  that  happened  on  November  1,  2022,  with  respect  to  these \nclaims was  the  issuance  of  the  second  opinion.    There  is  no  evidence  that  Claimant \nentered  a  new  healing  period  on  that  date;  the  entry  of  the  opinion  certainly  did  not \ntrigger one.  For that reason, assuming Claimant is entitled to additional temporary total \ndisability benefits, his eligibility did not resume on that date. \n\nMcMURTRY – G704530 & G800411 \n \n32 \n \n It must first be determined whether, if at all, Claimant has entered a new healing \nperiod at all.  With regard to his respective injuries, Claimant has not argued, and the \nevidence  does  not  show,  that  he  has  begun  a  new  healing  period  concerning  his \nstipulated  compensable  left shoulder injury.   As for  his adjudicated  compensable left \nhip injury of June 26, 2017, I have found that none of Claimant’s treatment therefor on \nand  after  October  8,  2021, is causally  related  to it;  and  he  has  not  proven  a \ncompensable consequence with regard to that body part.  Thus, nothing concerning his \nleft  hip  that has  occurred  since October  8, 2021—and, especially, since  November  1, \n2022—has led to Claimant entering another healing period. \n That  leaves  his  stipulated  compensable  back  injury.  Claimant’s testimony and \nhis medical records reveal that he has undergone the trial implantation of a peripheral \nnerve stimulator on multiple occasions.  Again, this was treatment that he was awarded \nout  of  the  2022  proceeding.   The  first  time  Claimant  saw  Dr.  Goree  after  the  2022 \nopinion   was   handed   down   was   on   April   25,   2023.      Goree   recommended   the \nimplantation  of  the  stimulator.    This  happened  on  May  22,  2023,  with  Dr.  Gregory \nSmith installing it.  According to Claimant, the stimulator worked for approximately one \nweek.   On June 23, 2023, Claimant went to Goree’s office in an effort to have the \ndevice  fixed.    Unfortunately,  the  stimulator  still  did  not  work,  and  the  leads  were \nremoved.  Claimant returned to Dr. Goree on August 29, 2023.  On that occasion, the \ndoctor ordered more physical therapy.  Another implantation was scheduled.  This new \nprocedure,  conducted  by  Goree, occurred  on  October  12,  2023.   In  this  instance,  the \n\nMcMURTRY – G704530 & G800411 \n \n33 \n \nstimulator worked for 60 days.  Claimant’s testimony was that the device improved his \nfunctionality.  After the 60-day period, the stimulator was removed.  More therapy was \nordered. \n The  evidence  shows  that  the  peripheral  nerve  stimulators did  not  extend  the \nhealing period for Claimant’s back injury—which  I  found  in  the  2022  opinion  that  he \nreached on February 13, 2018.  Nor did the implantations result in his entering a new \nhealing  period.    Instead,  the  stimulator  trials and  other  back  treatments discussed \nabove were aimed  merely  at managing Claimant’s back injury beyond the end of his \nhealing  period.  See  Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d \n31 (2004). \n In sum, Claimant has not met his burden of proving his entitlement to additional \ntemporary total disability benefits for any period. \nE. Attorney’s Fee \n One of the purposes of the attorney's fee statute is to put the economic burden \nof litigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. \n193, 745 S.W.2d 647 (1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B) Attorney’s fees shall be twenty-five  percent  (25%)  of  compensation \nfor indemnity benefits payable to the injured employee or dependents of a \ndeceased  employee  .  .  .  In  all  other  cases  whenever  the  commission \nfinds  that  a  claim  has  been  controverted,  in  whole  or  in  part,  the \ncommission shall direct that fees for legal services be paid to the attorney \nfor  the  claimant  as  follows:    One-half  (½)  by  the  employer  or  carrier  in \naddition  to  compensation  awarded;  and  one-half  (½)  by  the  injured \nemployee  or  dependents  of  a  deceased  employee  out  of  compensation \npayable to them. \n \n\nMcMURTRY – G704530 & G800411 \n \n34 \n \n Discussion.  Claimant has now been awarded any additional indemnity benefits \nherein.  For that reason, the evidence does not preponderate that his counsel, the Hon. \nGeorge Bailey, is entitled to a controverted fee. \nCONCLUSION \n Judgment  is  hereby  entered  in accordance  with  the Findings  of Fact  and \nConclusions of Law set forth above. \n IT IS SO ORDERED. \n       _______________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NOS. G704530 & G800411 BRANDON B. McMURTRY, EMPLOYEE CLAIMANT VILONIA WATERWORKS ASSN., INC., SELF-INSURED EMPLOYER RESPONDENT ARK. MUNICIPAL LEAGUE, THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED DECEMBER 2, 2024 Hearing before Administrative Law Judge O. Mi...","fetched_at":"2026-05-19T22:44:57.629Z","links":{"html":"/opinions/alj-G704530-2024-12-02","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/McMurtry_Brandon_G704530_20241202.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}