{"id":"alj-G802688-2026-02-09","awcc_number":"G802688","decision_date":"2026-02-09","opinion_type":"alj","claimant_name":"Rosa Hernandez","employer_name":"Department Of Human Services","title":"HERNANDEZ VS. DEPARTMENT OF HUMAN SERVICES AWCC# G802688 February 09, 2026","outcome":"granted","outcome_keywords":["granted:5"],"injury_keywords":["back","lumbar","hip"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/HERNANDEZ_ROSA_G802688_20260209.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HERNANDEZ_ROSA_G802688_20260209.pdf","text_length":22000,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G802688 \n \nROSA HERNANDEZ, Employee CLAIMANT \n \nDEPARTMENT OF HUMAN SERVICES, Employer RESPONDENT NO. 1 \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 \n \n \n \n OPINION FILED FEBRUARY 9, 2026 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant represented by LAURI THOMAS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents No.  1 represented  by CHARLES  MCLEMORE,  Attorney  at  Law, Little \nRock, Arkansas. \n \nRespondents No.  1 represented  by CHRISTY  L.  KING,  Attorney  at  Law, Little  Rock, \nArkansas; not appearing at hearing. \n \n \n \n STATEMENT OF THE CASE \n \n On January  14,  2026,  the  above  captioned  claim  came  on  for  a  hearing  at \nSpringdale,  Arkansas.      A  pre-hearing  conference  was  conducted  on November  19, \n2025,  and  an amended pre-hearing  order  was  filed  on December  15,  2025. A  copy  of \nthe Pre-hearing Order has been marked Commission's Exhibit No. 1 and made a part of \nthe record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n\nHernandez – G802688 \n \n-2- \n1.    The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  the \nwithin claim. \n2.  Prior Full Commission Opinion of September 10, 2019, is final. \n3. Claimant was released at maximum medical improvement by Dr. Blankenship \non March 2, 2023. \n4.  Respondents  have  accepted  and  paid  claimant  permanent  partial  disability \nbenefits based on a 21% impairment rating. \nThe issues to be litigated at the forthcoming hearing are as follows: \n1.    Claimant’s  entitlement  to  permanent  total  disability  benefits,  or  in  the \nalternative wage loss. \n2. Attorney’s fee. \nThe claimant contends “claimant sustained a compensable injury while working \nfor Respondent on or about February 12, 2018. At that time, Claimant was in the course \nand scope of her employment with Respondent and as lifting a child when she felt pain \nin her low back and tailbone. \nDr. Blankenship was the authorized treating physician to first treat claimant. Rosa \nhas  failed  conservative  treatment  multiple  times  consisting  of  injections  and  physical \ntherapy. Dr. Blankenship performed a right SI fusion in December 2019, a left S1 fusion \nin January 2020. \nDr. Blankenship then did a lumbar fusion in May 2021. After attempting some PT, \nand then some injections with continued pain with Dr. Cannon, Claimant was referred to \nDr. Sites by Dr. Blankenship for further evaluation and treatment. \n\nHernandez – G802688 \n \n-3- \nClaimant   was   treating   with   Dr.   Sites   since   September   2021.   Dr.   Sites \nrecommended surgery on January 20, 2022 to claimant’s right hip in the form of a right \nIT  band  release,  Greater  Trochanteric  (GT)  Bursectomy  and  Piriformis  Release  which \nClaimant had in September 2022. Claimant then did physical therapy. \nDr.  Blankenship  stated  she  is  at  MMI  for  surgical  intervention  and  it  no  way \nmeans that she is fully recovered. In the future she may very well need to have further \ninjections or piriformis otherwise. \nClaimant  had  a  Functional  Capacity  Evaluation  on  01/09/2023.  Dr.  Blankenship \nassigned claimant a 21% impairment to the body as a whole on 03/02/23. \nDr. Blankenship noted he would recommend that she get back in to see Dr. Sites \nfor the left-hand side which can raise her impairment rating to the body as a whole. \nDr. Blankenship gave our client the permanent restrictions of a 25-pound weight-\nlifting  restriction  with  no  sedentary  work  and  no  prolonged  sitting,  no  prolonged \nstanding, no twisting and bending at the waist. \nClaimant  has  received  some  injections  from  Dr.  Cannon.  Claimant  is  also  still \nwaiting for the piriformis release recommended by Dr. Blankenship to be performed by \nDr Yakin, because Dr. Sites is no longer practicing. \nOur   client   attended   a   Vocational   Rehab   meeting,   applied   with   various \nemployments, to which a job offer has not been extended to her. \nRespondents have controverted Claimant’s right to wage loss disability benefits \nand or in the alternative, PTD benefit.  \nClaimant recently did an FCE on 07/23/2025 to which claimant scored a 50 out of \n50 consistency.” \n\nHernandez – G802688 \n \n-4- \nRespondents No. 1 contend “that the claimant reported an injury to her low back \nand  right  elbow  occurring  February  12,  2018,  which  the  Respondents  No.  1  accepted, \nand benefits including medical and indemnity have been and continue to be provided to \nor on behalf of the claimant by Respondent No. 1. \nThis claim was the subject of a prior hearing on April 10, 2019 with an opinion of \nthe Administrative Law Judge dated May 6, 2019 and decision of the Full Commission \ndated September 10, 2019 which is now a final decision, res judicata and the law of the \ncase. \nThat  decision held  that  the  claimant  was not  entitled  to additional  TTD  benefits, \nbut was entitled to the “additional medical treatment from Dr. Blankenship. This includes \nhis proposed surgery.” The proposed surgical procedure included in that award was \nfusion of the SI joint by Dr. Blankenship. The claimant has been provided this treatment, \nshe underwent surgery on the right SI joint on December 3, 2019, and on the left SI joint \non  January  14,  2020.  After  these  procedures  the  claimant  underwent  lumbar  fusion \nsurgery by Dr. Blankenship at L4-5, L5-S1 on May 12, 2021. The claimant has also had \ninjections  by  Dr.  Robert  Cannon.  The  claimant  underwent  right  hip  iliotibial  band \nrelease, greater trochanteric bursectomy and piriformis release on September 28, 2022 \nby Dr. Terry Sites. On December 15, 2022, Dr. Sites released the claimant at MMI with \nno recommendation of surgery at this time and no permanent restrictions or permanent \nimpairment. \nThe   claimant   was   released   at   maximum   medical   improvement   by   Dr. \nBlankenship on March 2, 2023, at which time he assigned the claimant 21% anatomical \n\nHernandez – G802688 \n \n-5- \nimpairment  to  the  body  as  a  whole  for  all  of  her  surgeries.  Respondent  has  accepted \nthis impairment rating and has paid PPD benefits to the claimant for this rating. \nThe  claimant  performed  unreliably  at  a  Functional  Capacity  Evaluation  on \nJanuary  9,  2023  in  the  Sedentary  classification  of  work,  with  only  30  out  of  53 \nconsistency  measures.  Subsequently,  when  Dr.  Blankenship  released  the  claimant  at \nMMI  on  March  2,  2023,  h  assigned  work  restrictions  of  25  pound  weight  lifting \nrestriction, no prolonged sitting, standing, twisting and bending at the waist. \nThe  claimant  has  been  provided  with  medical  treatment  subsequent  to  her \nrelease, including treatment and injections by Dr. Cannon. The claimant has not had the \nleft  side  piriformis  release  because  she  pursued  injections  instead,  which  have  been \nprovided  to  her.  After  demanding  an  injection  in  her  back,  the  claimant  was  provided \nwith  a  follow  up  appointment  with  Dr.  Cannon  on  January  14,  2025  where  he \nrecommended  an  injection  in  her  bilateral  SI  joint,  even  though  she  already  had  the \nfusion.  This  injection  was  authorized  by  Respondent  and  provided  for  the  claimant  on \nJanuary 29. The claimant is now seeking LESI injections with Dr. Cannon, which have \nbeen  provided  by  Respondent  No.  1.  The  claimant  continues  to  receive  injections, \nprovided   by   Respondent,   including   bilateral   SI   joint   injections   and   sacral   hiatus \ninjections, which the claimant has benefited from. No surgery is recommended for her at \nthis time. The claimant tested reliably in the Sedentary classification of work at another \nFCE on July 23, 2025. \nThe Respondents No. 1 contend that the claimant, age 51, cannot establish that \nshe  is unable  to  earn any meaningful  wages  at  the  same  or other employment,  and  is \ntherefore not permanently totally disabled. The Respondent No. 1 further contends that \n\nHernandez – G802688 \n \n-6- \nthe  claimant  cannot  meet  her  burden  of  proving  that  she  is  owed  permanent  disability \nbenefits  in  excess  of  her  permanent  anatomical  impairment  rating.  The  claimant,  who \nhas a family business and had contended to be permanent totally disabled in April 2023, \nhas  been  provided  vocational  rehabilitation  but  contends  that  she  has  not  returned  to \nwork. \nDiscovery is ongoing in this claim and the Respondents reserve the right to raise \nadditional  contentions,  or  to  modify  those  stated  herein,  pending  the  completion  of \ndiscovery.” \nRespondent No. 2 contends if the claimant is found to be permanently and totally \ndisabled, the Trust Fund stands ready to commence weekly benefits in compliance with \nA.C.A.  §11-9-502.  Therefore,  the  Trust  Fund  has  not  controverted  the  claimant’s \nentitlement to benefits. \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted on November 19, 2025, and contained in an amended pre-hearing order filed \nDecember 15, 2025, are hereby accepted as fact. \n 2. Claimant has failed to meet her burden of proving by a preponderance of the \nevidence that she is permanently totally disabled as a result of her compensable injury. \n\nHernandez – G802688 \n \n-7- \nClaimant has met her burden of proving by a preponderance of the evidence that she is \nentitled  to  permanent partial  disability  benefits  in  an  amount  equal  to  50%  to  the body \nas a whole for a loss in wage earning capacity. \n 3. Respondent has controverted claimant’s entitlement to payment of permanent \npartial disability benefits in an amount equal to 50% to the body as a whole. \n \nFACTUAL BACKGROUND \n Claimant  is  a  51-year-old  woman  who  began  working  for  respondent  as  a \nprogram  assistant  in  February  2017.  Her  job  duties  included  picking  up  children  from \nschool or daycare and taking them for supervised visits with family members. She also \nassisted  clients  with  housekeeping;  took  them  to  and  from  therapy  appointments;  and \nset up therapy appointments.  \n Claimant suffered an admittedly compensable injury to her back on February 12, \n2018, when she fell in a parking lot after returning to the office from picking up a child. \nClaimant had pain in her low back and tailbone area that continued to worsen during the \ncourse  of  the  day.  She  initially  received  medical  treatment  from  Washington  Regional \nMedical  Center  before  treating  with  her  family  physician,  Dr.  Anna  Eremieva.  Dr. \nEremieva  eventually  ordered  an  MRI  scan  which  revealed  degenerative  disc  disease \nand  disc  bulges  at  L4-L5  and  L5-S1.  Thereafter,  claimant  received  conservative \ntreatment  which  included  physical  therapy;  injections;  and  medication.  Claimant  was \nalso  evaluated  by  Dr.  Luke  Knox,  neurosurgeon,  who  indicated  that  he  had  nothing  to \noffer the claimant and recommended that she undergo a functional capacity evaluation. \nThe FCE was performed and numerous inconsistencies were noted. On September 28, \n\nHernandez – G802688 \n \n-8- \n2018, Dr. Knox released claimant from his care and indicated that claimant was capable \nof performing sedentary work. \n After  her  release  by  Dr.  Knox,  claimant  filed  for  and  received  a  change  of \nphysician to Dr. Blankenship. Dr. Blankenship ordered a second MRI scan and opined \nthat claimant’s issues were caused by her SI joint and he referred her to Dr. Cannon for \nan SI joint injection. Respondent denied additional medical treatment recommended by \nDr. Blankenship and a hearing was conducted on April 10, 2019. In an opinion filed May \n6, 2019, this administrative law judge found that claimant had met her burden of proving \nby  a  preponderance  of  the  evidence  that  she  was  entitled  to  additional  medical \ntreatment from Dr. Blankenship. It was also determined that claimant had failed to prove \nentitlement  to  additional  total  temporary  disability  benefits  from  November  26,  2018, \nthrough a date yet to be determined. That opinion was appealed and was affirmed and \nadopted by the Full Commission in an opinion filed September 10, 2019. \n Thereafter,  claimant  continued  to  treat  with  Dr.  Blankenship  who  performed  a \nright SI joint arthrodesis on December 3, 2019, and a left SI joint arthrodesis on January \n14,  2020.  Dr.  Blankenship  also  performed  an  arthrodesis  at  L4-L5  and  L5-S1  on  May \n12, 2021.  Claimant also  underwent a  piriformis  release  by  Dr. Sites  on  September  28, \n2022,  and  was  released  from  his  care  on  December  15,  2022.  The  parties  have \nstipulated   that   claimant   was   released  at  maximum  medical   improvement  by   Dr. \nBlankenship  on  March  2,  2023,  and  that  respondent  has  accepted  and  paid  claimant \npermanent partial disability benefits based upon a 21% impairment rating to the body as \na whole. \n\nHernandez – G802688 \n \n-9- \n Since  the  time  of  her  release  by  Dr.  Blankenship  claimant  has  continued  to \nreceive pain management treatment in the form of injections from Dr. Cannon. As of the \ndate of the hearing respondent had continued to pay for that medical treatment.  \n Claimant has filed this claim contending that she is permanently totally disabled, \nor in the alternative, that she is entitled to permanent partial disability benefits for wage \nloss as a result of her compensable injury.  \n \nADJUDICATION \n Claimant contends that as a result of her compensable injury she is permanently \ntotally  disabled.  Pursuant  to  A.C.A.  §11-9-519(e),  in  order  to  be  entitled  to  permanent \ntotal  disability  benefits  claimant  has  the  burden  of  proving  by  a  preponderance  of  the \nevidence  that  because  of  her  compensable  injury  she  has  an  inability  to  earn  any \nmeaningful wages in the same or other employment.  \n After  reviewing  the  relevant  wage  loss  factors  in  this  claim,  I  find  that  claimant \nhas failed to prove that she is permanently totally disabled but instead, find that she is \nentitled to payment of permanent partial disability benefits in an amount equal to 50% to \nthe body as a whole for a loss in wage earning capacity. \n In  considering  whether  claimant  is  entitled  to  permanent  disability  benefits  in \nexcess  of  her  permanent  physical  impairment  rating,  the  Commission  may  take  into \naccount   various   factors   including   the   percentage   of   permanent   impairment,   the \nclaimant’s age, education, work experience, and all other matters reasonably expected \nto affect her future earning capacity. A.C.A. §11-9-522(b)(1). \n\nHernandez – G802688 \n \n-10- \n First,  I  note  that  no  treating  physician  has  opined  that  claimant  is  incapable  of \nworking.  In  a  report  dated  February  6,  2023,  Dr.  Blankenship  indicated  that  claimant \ncould  return  to  work  with  restrictions  of  no  lifting  over  25  lbs.;  no  prolonged  sitting, \nstanding, walking, bending, or twisting; no stooping, climbing, or crawling. He reiterated \nthese restrictions in his report of March 2, 2023. \n More than two years after this report by Dr. Blankenship, the claimant underwent \na   second   functional   capacity   evaluation   on   July   23,   2025.   The   evaluation   was \ninterpreted  as  reliable  with  50  of  50  consistency  measures  within  expected  limits.  The \nevaluation  determined  that  claimant  was  capable  of  returning  to  work  in  the  sedentary \nclassification of work. Claimant’s ability to lift was limited to 10 lbs. with both her right \nand left upper extremities and an occasional bi-manual lift/carry of 10 lbs. \n Prior  to  the  second  FCE,  claimant  was  evaluated  by  a  rehabilitation  specialist, \nKeondra Hampton. Hampton did not have the benefit of the second FCE but did identify \nvarious jobs for the claimant. Claimant applied for many of these jobs as well as other \njobs;  however,  she  was  unable  to  obtain  employment.  Even  though  claimant  was \nunable  to  obtain  employment  at  these  particular  jobs,  I  nevertheless  find  that  claimant \nhas the capacity to become employed at sedentary work. \n As  previously  noted,  the  claimant  is  51  years  old.  The  June  26,  2023,  rehab \nevaluation  indicates  that  claimant  obtained  her  GED  in  1994  and  that  she  attended \nWestern Business College in Portland, Oregon, for bookkeeping training. Claimant also \nhad an insurance license from 2005 through 2009.  \n Claimant’s prior job experience also indicates that she is capable of sedentary \ntype work. From 2003 through 2008 the claimant worked as a claims clerk for Payless \n\nHernandez – G802688 \n \n-11- \nInsurance.  Thereafter,  from  2009  through  2010  the  claimant  owned  and  operated  a \ndaycare  center  out  of  her  home.  From  2016  through  2017  claimant  worked  for \nInterpreters Unlimited, translating between patients and physicians. From 2011 through \n2014  claimant  worked  for  Ozark  Guidance  Centers  translating  counseling  sessions  for \nstudents and therapists. In 2010 claimant translated for patients in Washington Regional \nMedical  Center.  Finally,  claimant  worked  as  a  program  specialist  for  the  respondent \nwhere  her  duties  included  picking  up  children  from  school or  daycare  and  taking  them \nfor  supervised  visits  with  family  members  and  assisting  clients  by  taking  them  to  and \nfrom therapy appointments.  \n Notably,  the  rehabilitation  specialist  identified  various  transferrable  skills  of  the \nclaimant.  These  included  the  preparation  of  financial  documents,  reports,  or  budgets; \ndetermining resource needs; maintaining operational records; preparing documentation \nfor   contracts,   transactions,   or   regulatory   compliance;   reviewing   documentation; \ninterpreting/effective communication.  \n At  the  hearing,  claimant  testified  that  she  and  her  husband  previously  shared \nownership of a landscaping business. Claimant is currently separated from her husband \nand no longer has any ownership interest in that business. In connection with her prior \nwork  for  the  landscaping  business  claimant  not  only  performed  physical  labor  but  also \nused her phone to deposit checks. In fact, claimant testified that she used her phone to \ncomplete  job  applications  sent  to  her  by  the  vocational  rehabilitation  specialist  as  well \nas other jobs which she applied for on her own. \n I also note that respondent introduced into evidence videos from 2022 and 2023. \nThe video from 2022 is before claimant was released by Dr. Blankenship. With respect \n\nHernandez – G802688 \n \n-12- \nto the 2023 video, I do not see any activity on the video which contradicts claimant’s \ntestimony or violates her work restrictions.  \n In short, I do not find that claimant has proven that she suffers a total incapacity \nto earn wages. As previously noted, none of claimant’s treating physicians have opined \nthat she is permanently totally disabled. Instead, Dr. Blankenship indicated that claimant \ncould return to work with restrictions. Approximately two years after her release by Dr. \nBlankenship  claimant  underwent  an  FCE  which  was  reliable  and  determined  that \nclaimant  was  capable  of  performing  work  in  the  sedentary  classification  of  work.  A \nreview of claimant’s prior jobs indicates that she has skills which would enable her to \nperform sedentary type work. Although the claimant has a significant impairment rating \nin  an  amount  equal  to  21%  to  the  body  as  a  whole,  I  find  based  upon  the  evidence \npresented that claimant is capable of performing sedentary type work and find that she \nhas suffered a loss in wage earning capacity in an amount equal to 50% to the body as \na whole. \n \nAWARD \n Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  she  is \npermanently  totally  disabled  as  a  result  of  her  compensable  injury.  Instead,  I  find  that \nclaimant is entitled to permanent partial disability benefits in an amount equal to 50% to \nthe  body  as  a  whole  based  upon  a  loss  in  wage  earning  capacity.  Respondent  has \ncontroverted claimant’s entitlement to permanent partial disability benefits in an amount \nequal to 50% to the body as a whole. \n\nHernandez – G802688 \n \n-13- \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.   Also pursuant to A.C.A. §11-9-715(a)(1)(B), an attorney fee is not \nawarded on medical benefits. \nAll sums herein accrued are payable in a lump sum and without discount.  This \naward shall bear interest at the maximum legal rate until paid. \nRespondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $1,021.00. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G802688 ROSA HERNANDEZ, Employee CLAIMANT DEPARTMENT OF HUMAN SERVICES, Employer RESPONDENT NO. 1 PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED FEBRUARY 9, 2026 Hearing b...","fetched_at":"2026-05-19T22:31:54.061Z","links":{"html":"/opinions/alj-G802688-2026-02-09","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/HERNANDEZ_ROSA_G802688_20260209.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}