{"id":"alj-G708197-2023-02-07","awcc_number":"G708197","decision_date":"2023-02-07","opinion_type":"alj","claimant_name":"Jose Perez","employer_name":"Southern Tire Mart, LLC","title":"PEREZ VS. SOUTHERN TIRE MART, LLC AWCC# G708197 FEBRUARY 7, 2023","outcome":"granted","outcome_keywords":["granted:2","denied:1"],"injury_keywords":["back","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/PEREZ_JOSE_G708197_20230207.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PEREZ_JOSE_G708197_20230207.pdf","text_length":21132,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G708197 \n \nJOSE MANUEL PEREZ, EMPLOYEE                    CLAIMANT \n \nv. \n \nSOUTHERN TIRE MART, LLC EMPLOYER            RESPONDENT \n \nLIBERTY INSURANCE CORPORATION, CARRIER/TPA          RESPONDENT \n \nOPINION FILED FEBRUARY 7, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the   13\nth\n day of December, \n2022, in Little Rock, Pulaski County,  Arkansas. \n \nClaimant is represented by Mr. Gary Davis, Attorney-at-Law, Little Rock, Arkansas. \n \nRespondents  are  represented  by  Mr.  Michael  E.  Ryburn,  Attorney-at-Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n  \n A hearing was conducted on the 13th day of December, 2022, to determine the sole \nissue  of  temporary  total  disability  from  December  8,  2020,  or,  in  the  alternative,  from \nSeptember 23, 2021, to a date to be determined.  A copy of the Prehearing Order was marked \n“Commission Exhibit 1” and made part of the record without objection.  The Order provided \nthat  the parties stipulated  that  the  Arkansas  Workers’  Compensation  Commission  has \njurisdiction of the within claim and that an employer/employee relationship existed on October \n13, 2017, when the claimant sustained compensable injuries.  At the time of the hearing, the \nparties agreed to stipulate that the claimant earned sufficient wages to earn a temporary total \ndisability rate of $476.00 and a permanent partial disability rate of $357.00.   \nAt  the  time  of  the  hearing,  the  claimant  provided  there  was  a  previous  hearing  on \nDecember  8,  2020,  which  ultimately  resulted  in  the claimant’s requested  surgery  on \nSeptember  23,  2021,  and  the  Court  of  Appeals affirmed the Commission’s findings in an \nOpinion issued  in  April  of  2022.    Consequently,  the  claimant  contends he is  entitled  to \n\nPEREZ – G708197 \n \n2 \n \ntemporary  total  disability  from  the  original  hearing  date  of  December  8,  2020,  or,  in  the \nalternative,  from  September  23,  2021,  the  actual  date  of  the  surgery,  to  a  date  to  be \ndetermined.  The  claimant  had  saved  money  for  the  surgery  and  paid  for  the  procedure \nhimself, and then after the decision of the Court of Appeals affirming the superion surgery, \nthe respondents reimbursed the claimant. \nThe  respondents  contended  at  the  time  of  the  hearing  that they  were  asserting  the \nDoctrine of Latches, and that if the claimant was disabled, he should have raised the issue at \nthe  initial  hearing  or  the  second  hearing,  which  he  failed  to  do.    The  respondents  further \ncontended that these actions were detrimental to the respondent due to the fact they were \nunable to return the claimant back to work or to a doctor for a rating, since he had failed to \nmake a timely claim.  The respondents also contended that the claimant had testified at the \nsecond hearing that he had been fully released and had been working, that there were jobs \nthat he could perform, and that the superion surgery recommended by Doctor Olaya would \nprovide immediate relief, and there shouldn’t be any temporary total disability.   \nConsequently, the parties agreed at the time of this hearing that the sole issue before \nthe Commission was the issue of temporary total disability.  The parties further agreed that \nthe claimant was continuing to receive additional medical.  The parties also agreed that they \nwere  unable  to  obtain  any  medical  from  the  pain  clinic,  and  Dr.  Olaya,  who  performed  the \nsuperion procedure, had left the clinic and they were unable to locate him.  The claimant’s \nmedical records apparently left with him.  \nThe claimant responded to the respondent’s position by contending that they had filed \nthe  AR-C and  they  reserved  the  right  to  pursue  disability  benefits,  including  temporary  or \npermanent,  and  consequently  the  claim  for  temporary  total  disability  had  been  reserved \nthroughout the entirety of the claim.      \n\nPEREZ – G708197 \n \n3 \n \n The claimant’s and respondents’ contentions are set out in their respective responses \nto the prehearing questionnaire and made a part of the record without objection.  The  sole \nwitness to testify was the claimant, Jose Perez.  The claimant submitted an exhibit of medical \nrecords  along  with  the  Court  of  Appeals  transcript  without  objection.  The  respondents \nsubmitted  an  exhibit  which  provided  for  the  payments  that  were made  in  regard  to  the \nclaimant’s treatment.  From a review of the record as a whole, to include medical reports and \nother matters properly before the Commission and having had an opportunity to observe the \ntestimony and demeanor of the witness, the following findings  of  fact  and  conclusions  of  \nlaw  are  made  in  accordance  with  Ark. Code Ann. §11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n \n2.   That  an  employer/employee  relationship  existed  on  October  13,  2017,  the  date \nthat the claimant suffered a compensable injury. \n \n3.   That the claimant has failed to prove, by a preponderance of the credible  evidence, \nthat he is entitled to temporary total disability. \n  \n4.   If not already paid, the respondents are ordered to pay for the cost of the transcript \nforthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The claimant, Jose Perez, testified that he was born on June 25, 1982, and had gone \nthrough  the  fifth  grade  in  Mexico  with  no  education  in  the  United  States.  (Tr.p.11)    The \nclaimant testified he had worked for the respondent for about ten (10) years.  At the time of \nthe  injury,  he  was  driving  a  service  truck for the  respondent  and  was  injured  while  lifting  a \nlarge tire. (Tr.p.12)  The claimant admitted he had received medical treatment and his medical \ntreatment  was  continuing.    He  also  admitted  he  had  already  been  involved  in  a  couple  of \nhearings  in  regard  to this matter and the surgical procedure recommended by Dr. Olaya \n\nPEREZ – G708197 \n \n4 \n \nhad been provided.  He also admitted he had received multiple  injections  which  could  be  \nsometimes  referred  to   as   a  surgical  procedure. (Tr.pp.13-14) \n  The claimant testified that after the actual surgery in September of 2021, he returned \nto the clinic for a follow-up and found Dr. Olaya was no longer at the clinic. Consequently, he \nwent to Little Rock, where he saw Dr. Nissan, who removed the stitches from his back that \nwere the result of the surgery.  He told Dr. Nissan the surgery was no good because he was \nstill suffering pain.  The pain continued, so he returned to see Dr. Nissan and stated that in \nregard to the surgery, “It don’t help at all now.”  Dr. Nissan refused to see him and sent him \nto  Conway  to  Dr.  Mohammed  Tolba,  who  ordered  injections  where  the L3-L4  surgery  was \nperformed. (Tr.pp.15-16)  \n During this time period, the claimant stated that Dr. Olaya personally called him and \nstated, “Hey I moved to a different doctor.  He’s got a beautiful place.  I’m gonna help you \nwith your surgery.  We’ll do the surgery in the right place, which you really need it, and can \nsee me.”  Dr. Olaya also told him, “but you have to cancel the contract you have with them \nso you’ll be able to see me.”  (Tr.p.17)  \n The claimant returned to the pain clinic after the surgery to obtain his records and was \ntold they did not have any records of the surgery and he never had surgery there.  He stated \nhis wife then pulled up his shirt and showed the clinic the scars on his back. (Tr.pp.18-20)  \nThe claimant also testified he was able to find and see Dr. Olaya one more time and Dr. Olaya \ntold him, “Next fall you come and see me and we’ll talk where the surgery is gonna be, cause \nhe was supposed to do another surgery he thinks where the pain was.”  The claimant went \non  to  testify  he had also  received  a  letter  which  stated  that  the  place  was  closed  and  Dr. \nOlaya was not there.  The claimant did not know where to go, so he went to Dr. Garlapati in \nNorth Little Rock to receive injections for his pain.  The injections were placed right beside \nwhere he had the surgery.  (Tr.pp. 21-23)  The claimant contended he had made complaints \n\nPEREZ – G708197 \n \n5 \n \nto  the  police  and  to  the  medical  board  in  regard  to  his  problems.    (Tr.p.25)  He also  was \nunable to locate Dr. Olaya after he had treated with Dr. Garlapati.  (Tr.p.26)   The claimant \nwas currently treating with Dr. Fletcher at the Pain Treatment Center of America in Searcy.  \nIt  was  his  understanding  that  Dr.  Fletcher  was  considering  surgery.   He  also  admitted \ntraveling to Mexico, after the superion surgery, to obtain another opinion.  (Tr.p.27)   He paid \nfor  an  MRI out-of-pocket  to  show  that  he  did  in  fact  have  the  superion  device in  his  back. \n(Tr.p. 28)  \n The claimant testified he has pain in the center of his low back and when he stands or \nwalks for a while, it spreads to the side.  He denied having pain in his legs.  He went on to \nstate,  “But it’s like, it’s so strong like it burns, and when I’m standing for a while, it starts to \nfeel like somebody may be pinch where the nerves.  It feels like it’s real hotter.” (Tr.p.30)     He \nwent  on  to  state  that  he  would  not  be  able  to  work  under  the  circumstances.  (Tr.p.31)   \nAdditionally, he had not been released to return to work after the surgery and had not worked \nfrom  December  8,  2020,  the  date  of  the  surgery,  until  now  due  to  the  horrible  pain.   He \nadmitted he had performed some work with his wife at a hotel and had also admitted the work \nat the previous hearing.  (Tr.p.35)  He also admitted that he had worked for a week and a half \nand would work for a little bit and would then have to go home.  He also worked two (2) hours \na day, two (2) or three (3) days a week at a restaurant, and had probably worked there two \nto    two   and  one-half (2-1/2)  months,  but  the  pain  was  horrible.    He  quit  due  to the  pain.  \n(Tr.pp.36-37)   \n Dr. Fletcher had seen him three (3) times.  He received injections and Dr. Fletcher had \nreviewed the MRIs from Jonesboro, Searcy, and Little Rock, and referred him to Dr. Calhoun, \na  surgical  doctor  in  Little  Rock.   (Tr.p.39)   The  claimant  had  a  return appointment  with  Dr. \nFletcher, who is going to tell him if his insurance approved the next surgery. (Tr.p.40) \n\nPEREZ – G708197 \n \n6 \n \n Under cross-examination, the claimant admitted the pain management treatment by \nDr. Qureshi was approved at the time of the first hearing.  Dr. Qureshi, or his clinic, referred \nthe claimant to Dr. Olaya.  The claimant stated after Dr. Olaya left, he then went to North Little \nRock and then to Little Rock and was told Dr. Rush would not see him, but Dr. Nissan would, \nand they were in the same clinic as Dr. Qureshi.  Dr. Nissan removed the stitches from the \nsurgery, but she refused to see him when he returned with the horrible pain.  She sent him to \nDr. Tolba in Conway, at Arkansas Spine and Pain, which is the same company that provided \nthe trigger point injections.  The claimant denied actually seeing Dr. Garlapati at the time, but \nsaw  Dr.  Nissan  who was  in  the  same  building  with  Dr.  Garlapati.    Dr.  Nissan  removed  the \nstitches on a Friday, but when he returned on the following Monday, she refused to see him, \nand  that’s  when  he  was  sent  to  Dr.  Tolba  who  provided  the  injections.    (T.pp.41-43)    The \nclaimant  also  admitted  he  was  currently  being  treated  by  Dr.  Fletcher  at  Pain  Center  of \nAmerica, who had treated him three (3) times, and that he had elected to go there and was \nnot referred by Dr. Qureshi.  On the second visit to Dr. Fletcher, he was sent to Dr. Calhoun.  \n(Tr.p.44)  He also testified the trigger point injections were not helping and that he had thirteen \n(13) injections with Dr. Olaya, but is currently taking medications prescribed by Dr. Fletcher. \n(Tr.p.45)  The claimant also admitted the superion device that had been implanted into his \nspine did not work at all. (Tr.pp.46-47) \n The claimant also admitted that at the second hearing, he had testified he was working \nat a hotel and at a restaurant.  He also admitted no doctor had taken him off-work completely \nand that at one time Dr. Olaya had stated that he should be released to work.  Prior to the \nsuperion procedure, he was released to return to full-duty.  The claimant also admitted that \nat   one    time    he  was  seen  by  Dr.  Roman  who  stated  that  he  did  not  need  any  treatment. \n(Tr.p.  48)    He  also  admitted  that  the  MRI  showed  that  the  superion  device  was still  in  his \n\nPEREZ – G708197 \n \n7 \n \nback and he did not currently have a record from any doctor that provided that he could not \nwork. (Tr.p.50)    \n The  claimant  was  then  asked  if  he  had any evidence of a doctor taking him off-\nwork since the superion was inserted, yes or no.   The claimant responded, “Sir, the doctor \nhas not released me to work.  After I had this surgery, the doctor never gave me permission \nto work.”  (Tr.p.55) \n On  re-direct,  the  claimant  testified  that  the  fourteen  (14)  injections  he  had  received \nfrom Dr. Olaya was prior to the September surgery.  (Tr.p.56)  The claimant admitted talking \nto Dr. Garlapati and Dr. Calhoun about the superion being placed one level above where it \nshould have been. \n The attorneys were asked to make a closing argument.  The claimant’s representative \ncontended that an injured workers’ compensation party was entitled to rely on the expertise \nof their physician.  The attorney stated Dr. Olaya had personally showed up at his office at \none  point and stated  that  he  had  performed  fifty  (50)  of  the  procedures,  and  they  all  went \ngreat.  It appears Dr. Olaya believed the surgery needed to be performed, but the device was \napparently placed one level too high.  Even Dr. Olaya himself knows this because he’s offered \nto  fix  it  to  avoid  a  medical  malpractice  case.    If  medical  malpractice  was  committed,  the \nrespondents are still responsible for it.  The claimant is still in pain. The medical records from \nthe Arkansas Spine and Pain Clinic and Dr. Olaya are gone. (Tr.pp.61-64) \n The respondents’ representative argued that since medical treatment was not an issue \nat  this  time,  the  only  issue was indemnity benefits.  Workers’ compensation  cases  rely  on \nmedical evidence and there’s nothing you can say except, “Yeah, we need some medical \nevidence.”  We need some medical evidence that this man cannot work and was taken off-\nwork.  There is no evidence to that effect.  The claimant was released to fully return to work \nand there is no basis for an award of temporary disability. (Tr.pp. 65-66)   \n\nPEREZ – G708197 \n \n8 \n \n The claimant’s medical records provided  that  the  claimant  received  injections  for \nsacroiliitis, with the first injection of record by Dr. Olaya on October 25, 2018.  The claimant \nalso received a lumbar facet medial branch block at the L3-L4, L4-L5, and the L5-S1 by Dr. \nOlaya, on his left side on May 13, 2021. (Cl. Ex. 1, pp.1-8)  On September 23, 2021, Dr. Olaya \ninserted a Stabilink MIS Interlaminar Spinal Fixation System at the Central Arkansas Surgery \nCenter. \n After  the  surgery,  the  claimant  received  trigger  point  injections  from  Dr.  Tolba  at \nArkansas Spine and Pain on October 12, 2021.  (Cl. Ex. 1, p.9)  Later, Dr. Tolba provided a \nlumbar  transforaminal  injection  to  the  claimant  on  January  4,  2022.  (Cl.  Ex.  1, p.10)    On \nSeptember 19, 2022, Dr. Garlapati performed a bilateral lumbar medial nerve block at L4-5 \nand at L5-S1.  The report provided the pain score was a 6 out of a 10 prior to the block and \na 4 out of 10 after the block. (Cl. Ex. 1, p.11) \n The claimant made multiple visits to Dr. Olaya, starting November 27, 2018, through \nthe date of September 28, 2021, for his back pain. (Cl. Ex. 1, pp.12-16)  The claimant also \nprovided  pharmacy  records  at  Stanley  Pharmacy  for  the  period  January  10,  2022,  through \nNovember   7,   2022,   which   showed   multiple   prescriptions   for   oxycodone,   duloxetine, \npregabalin, and methadone. (Cl. Ex. 1, pp.17-18)  The claimant also provided a letter from \nthe carrier approving the superion procedure. (Cl. Ex.1, p.19)  The claimant also submitted \nthe Court of Appeals transcript (Cl. Ex. 2, pp.1-218) and photos of the claimant’s back which \nwere admitted without objection. (Cl. Ex. 3)  \n The  respondents  submitted  a  payment  record  which  consisted  of three  pages  of \nrecords that was admitted without objection. (Resp. Ex. 1, p.1-3)       \n      DISCUSSION AND ADJUDICATION OF ISSUES \n \nThe  parties  agreed  at  the  beginning  of  the  hearing  that  the  sole  issue  before  the \nCommission  was  the  issue  of  the  claimant  being  entitled  to temporary  total  disability  from \n\nPEREZ – G708197 \n \n9 \n \nDecember 8, 2020, or, in the alternative, from the date of the surgery on September 23, 2021, \nto a date to be determined.  The facts in this matter are unusual due to the fact the doctor \nwho performed the procedure on the claimant’s back has disappeared along with the medical \nrecords that should have been preserved at the facility where the out-patient procedure was \nperformed.  Here instead of having a normal issue such as dueling medical opinions, we are \nbasically  faced  with  the  fact  that  both  parties  agree  many  important  medical  records  have \nsimply disappeared.  \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe Arkansas Workers’ Compensation Act and must sustain that burden by a preponderance \nof the evidence.  Dalton v. Allen Engineering Co., 66 Ark. App 260, 635 S.W.2d 543.   \nThe claimant injured his back in a work-related injury on October 13, 2017, and the \nclaim was accepted as compensable.  He received treatment from Doctor Olaya, receiving \nlumbar epidural steroid injections, facet medial branch blocks, and oral pain medications.  He \ncontended he received little relief from his pain and after a contested hearing, was successful \nin obtaining the superion procedure, which was recommended and performed by Dr. Olaya \non  September  23,  2022.  The  claimant  admitted  that  no  doctor  had  taken  him  off-work \ncompletely and that Dr. Olaya had provided he should be released to work.      \nTemporary total disability is that period within the healing period in which an employee \nsuffers  a  total  incapacity  to  earn  wages.   Arkansas  State  Highway  and  Transportation \nDepartment v. Breshears, 272 Ark. App. 244, 613 S.W. 2d 392 (1984).  The claimant bears \nthe burden of proving both that he remains within his healing period and in addition, suffers a \ntotal incapacity to earn pre-injury wages in the same or other employment.  Palazzo v. Nelms, \n46  Ark.  App.  130,  877S.W.2d  938  (1994).    The  healing  period  ends  when  the  underlying \ncondition causing the disability has become stable and nothing further in the way of treatment \n\nPEREZ – G708197 \n \n10 \n \nwill  improve  the  condition.   Mad  Butcher,  Inc.  v.  Parker,  4  Ark.  App. 124,  628  S.W.2d  582 \n(1982).   \nThe injured employee bears the burden of proving his inability to earn any meaningful \nwage.  Ark. Code Ann. § 11-9-519(e)(1)&(2).  In the present matter, the claimant admitted to \nsome work after the injury.  There are no medical reports of record providing that the claimant \nshould  remain  off-work  due  to his  lower  back  injury,  and  no physician  has  opined  that  the \nclaimant was unable to resume any gainful employment.  The disappearance of the medical \nrecords possibly constitutes an injustice to the claimant, but the law is clear that the claimant \nhas the burden of proof.  The claimant testified he had persistent pain which resulted from \nthe original work-related injury and the following superion surgery.  However, persistent pain \nis not sufficient in itself to extend the healing period or to find the claimant totally incapacitated \nfrom  earning  wages.   See Mad  Butcher,  Inc.  v.  Parker,  supra.    Temporary  total  disability \ncannot be based on speculation or conjecture.  Consequently, there is no alternative but to \nfind that the claimant has failed to satisfy the required burden of proof that he is entitled to \ntemporary total disability.   \nAfter reviewing all the evidence, without giving the benefit of the doubt to either party, \nthere is no alternative but to find that the claimant has failed to prove, by a preponderance of \nthe credible evidence, that he is entitled to temporary total disability.  If not already paid, the \nrespondents are ordered to pay for the cost of the transcript forthwith. \n IT IS SO ORDERED. \n  \n    \n      ________________________________ \n      JAMES D. KENNEDY \n        Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G708197 JOSE MANUEL PEREZ, EMPLOYEE CLAIMANT v. SOUTHERN TIRE MART, LLC EMPLOYER RESPONDENT LIBERTY INSURANCE CORPORATION, CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 7, 2023 Hearing before Administrative Law Judge, James D. Kennedy, on the 13 th day of D...","fetched_at":"2026-05-19T23:10:07.896Z","links":{"html":"/opinions/alj-G708197-2023-02-07","pdf":"https://labor.arkansas.gov/wp-content/uploads/PEREZ_JOSE_G708197_20230207.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}