{"id":"alj-G804085-2023-01-10","awcc_number":"G804085","decision_date":"2023-01-10","opinion_type":"alj","claimant_name":"Lisa Sowell","employer_name":"Evergreen Packaging, LLC","title":"SOWELL VS. EVERGREEN PACKAGING, LLC AWCC# G804085 JANUARY 10, 2023","outcome":"granted","outcome_keywords":["granted:2","denied:1"],"injury_keywords":["back","neck","lumbar","shoulder","cervical","hip","knee","strain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/SOWELL_LISA_G804085_20230110.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SOWELL_LISA_G804085_20230110.pdf","text_length":32141,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G804085 \n \nLISA SOWELL, EMPLOYEE       CLAIMANT \n \nVS. \n \nEVERGREEN PACKAGING, LLC, EMPLOYER        RESPONDENT \n \nACE AMERICAN INSURANCE COMPANY / \nGALLAGHER BASSETT SERVICES, INC., \nCARRIER /TPA              RESPONDENT \n \nOPINION FILED JANUARY 10, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 1\nst\n day of December \n2022, in Pine Bluff, Arkansas. \n \nClaimant is represented by Mr. Larry J. Steele, Attorney-at-Law, Walnut Ridge, Arkansas. \n \nRespondent  is  represented  by  Mr.  William  C.  Frye,  Attorney-at-Law,  North  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  conducted  on  the  1\nst\n  day  of  December,  2022,  to  determine  the \nissues of whether the Arkansas Workers’ Compensation  Act  is  unconstitutional  due  to \ndenial  of  due  process  and  equal  protection  under  the  14\nth\n  Amendment  of  the  United \nStates  Constitution  because  the  claimant  was  denied  an  updated  MRI  and  was  thus \nunable to treat with her choice of physician, additionally whether the claimant is entitled \nto  additional  medical  treatment  (including  medication  and  physical  therapy)  for her \ncompensable low-back injury, and also whether the claimant is entitled to permanent total \ndisability benefits,  plus any  attorney fees.  The  respondents admitted that the claimant \ndid request a different doctor, but that they were unable to obtain a name for  a second \ndoctor requested by the claimant, and further, that the change of physician rules do not \nrequire  the  respondent  to  pay  for  another  MRI,  and  the  MRI  is  not  reasonable  and \n\nSOWELL – G804085 \n \n2 \n \nnecessary.      A  copy  of  the  Prehearing  Order was marked “Commission Exhibit 1” and \nmade part of the record without objection.  The Order provided that the parties stipulated \nthat the Arkansas Workers’ Compensation Commission has jurisdiction of the within claim \nand that an employer/employee relationship existed at all relevant times including on or \nabout May 31, 2018, when the claimant sustained a compensable injury to her lower back.  \nAt the time of the compensable injury, the claimant was earning an average weekly wage \nof $1,250.00, entitling her a TTD/PPD rate of $673.00/$505.00, respectively, and that all \nissues not litigated herein are reserved under the Arkansas Workers’ Compensation Act. \nThere was no objection to these stipulations. \n It should also be clarified that the  claimant had also filed an action in the United \nStates  District  Court  in  Pine  Bluff  regarding  the  respondent,  and her  deposition  in  that \nmatter was introduced herein, without objection.    \n The  claimant’s  and  respondent’s contentions are all  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire  and  made  a  part  of  the  record  without \nobjection.  The sole witness consisted of Lisa Sowell, the claimant.  From a review of the \nrecord  as  a  whole,  to  include  medical  reports  and  other  matters  properly  before  the \nCommission, and having had an opportunity to observe the testimony and demeanor of \nthe witness, the following findings of fact and conclusions of law are made in accordance \nwith 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 at all relevant times including \nMay 31, 2018, when the claimant sustained a compensable injury to her lower \nback.  At the time, the claimant earned an average weekly wage of $1,250.00 \n\nSOWELL – G804085 \n \n3 \n \na week, sufficient for temporary total disability and permanent partial disability \nrates of $673.00 / $505.00 per week, respectively. \n \n3. That the Arkansas Workers’ Compensation Act is constitutional and applicable. \n \n4.  That the Functional Capacity Evaluation was found to be admissible.  \n \n5.  That the claimant has failed to satisfy the required burden of proof to show that \nshe is entitled to an additional medical treatment, specifically an additional MRI \nand physical therapy. \n \n6.  That the claimant has failed to satisfy the required burden of proof to show that \nshe is entitled to permanent total disability benefits. \n \n7.  That all other issues are moot. \n \n8.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The Prehearing Order, along with the prehearing questionnaires of the parties, and \nthe claimant’s amended response to the prehearing questionnaire were admitted into the \nrecord  without  objection.    The  claimant  and  respondents  both  submitted  a  voluminous \namount  of documents,  which  were admitted into the  record,  without  objection,  with  the \nexception of a Functional Capacity Exam submitted by the respondent, which the claimant \nobjected to.  The Functional Capacity Exam was found to be admissible at the time of the \nhearing,  based  upon  the  wide  discretion  available  to  the  Commission in  regard  to  the \nadmissibility of evidence.    \nThe claimant was the sole witness and testified she was fifty-five (55) years old at \nthe time of the hearing and graduated the twelfth grade.  She had previously worked at \nTysons  for  seventeen  (17)  years  in  security  which  involved  a  lot  of  standing  and  had \nstarted working for Evergreen in 2003 as a “floater”. (Tr. 22, 23)  In 2018, she was an \n“Operator” for Evergreen, where she fell while going down some stairs returning to her \n\nSOWELL – G804085 \n \n4 \n \noffice. (Tr. 24)  The claimant was knocked unconscious due to the fall and first saw Dr. \nVargus, who became her treating physician, ordered an MRI, and opined she should not \nlift over five (5) pounds. (Tr. 25, 26)  \nIn regard to the Functional Capacity Exam and her failing to complete it, she stated \nthat there was a chair in front of her and she was requested to kneel down in front of the \nchair, and every time she attempted to kneel down, she would feel like she was falling \ntowards the chair. (Tr. 27)  She also talked about a weight that was placed on her ankles, \nwhich caused her to scream due to it hurting.  She stated she never recovered from the \ninjury in regard to falling down the stairs where she was not in pain, but did reach a point \nwhere  she was no longer prescribed medication. (Tr. 28)  She admitted obtaining pain \nmedication, an injection, from the emergency room, once.  She also admitted receiving \nan  MRI  at  Jefferson  Regional  Medical  Center  in  2019,  in  regard  to  Social  Security,  a \nmonth before an automobile accident.  The claimant denied being in an accident between \nthe time of the accident at work and the MRI at Jefferson regional. (Tr. 29, 30) \nThe claimant also admitted she was involved in an automobile accident after the \nMRI, where the back part of a truck came over in her lane and hit her, but denied spending \nanytime in the hospital.  She stated Social Security had declared her totally disabled. (Tr. \n31) \nUnder  cross-examination,  the  claimant  admitted  she  was  not  aware  that  Dr. \nVargas had determined there were no limitations in regard to her neck.  She also agreed \nshe was sent to physical therapy in regard to her lower back.  She stated Dr. Vargas told \nher  he  was  going  to  take  care  of  her  back  first.    She  was  then  questioned  specifically \nabout her going into the clinic where the reports provided her low back was getting better.  \n\nSOWELL – G804085 \n \n5 \n \nShe responded, “That’s not correct” and went on to state that since she fell, she has been \nhaving problems with her back.  She admitted Dr. Vargas told her the same thing that Dr. \nWilkins told her, which was that it “was starting to be arthritis to build up”.   She denied \nbeing told there were no objective findings of an injury in regard to the MRI. (Tr. 32 - 34) \nThe claimant was also questioned about a nerve conduction study on August 23, \n2018, which provided “no evidence of any lumbar problems.”   She responded, “Well, he \nsaid, my nerves was good in my left leg” but he did not tell me that. (Tr. 36)  In regard to \ncomplaints  about  her  neck,  the  claimant  again  responded  that  she  was  told  they  were \ngoing  to  take  care  of her  back  first.    The  claimant  was  also  questioned  about an \nexamination on October 4, 2018, that provided that, “Muscle motor, unable to establish, \nsince patient’s lack of effort hurt the examination,” and the claimant responded, “I mean, \nI’m not getting it.  What was I supposed to do?  What is this about.” (Tr. 37, 38)  The \nclaimant  also  testified  she  was  not  aware  of  the  fact  the  Functional  Capacity  Exam \nprovided she did not give good effort in regard to her hands and she failed all the strength \ntests provided. (Tr. 39, 40) \nThe claimant was also questioned about the Social Security MRI of September 18, \n2019, where Dr. Smith provided the MRI, “showed simply mild degenerative disc disease \nat L3-4 and L4-5” and whether Dr. Smith went over the report with her, and she responded \n“Yes.”  She stated that  at  that  time  she  thought, “I could do some things.”  She also \nadmitted Dr. Vargas did not place any restrictions on her when he released her and no \ndoctor since Dr. Vargas had placed her under any restrictions. (Tr. 43) \nThe claimant also admitted she went to the emergency room after her automobile \naccident and then followed up at Liberty Chiropractic, where she stated she had injured \n\nSOWELL – G804085 \n \n6 \n \nher shoulder, legs, neck, back, and arms due to the accident.  The claimant testified the \nchiropractic treatment failed to improve her condition.  She was then asked about where \nthe report provided that the claimant reported an eighty to eighty-five percent (80% - 85%) \nimprovement and did the chiropractor get that wrong and her response was, “As far as \nme being real sore and tense, yeah, but it didn’t help my condition.” (Tr. 45)  The claimant \ndenied any attempt of returning to work. (Tr. 46)   \nIn regard to documentary evidence, the claimant submitted five (5) exhibits.  The \npertinent medical records from Jefferson Regional Ortho and Spine Clinic and Dr. Jason \nSmith, dated September 19, 2019, provided the claimant returned after obtaining an MRI \nof the lumbar and cervical spine which provided she suffered from multilevel degenerative \ndisc  disease,  with  no significant  central  canal  stenosis or  foraminal  narrowing and  that \nthe lumbar spine actually looked fairly benign.  There was a left foraminal disc bulge at \nL3-4 which correlated with the left anterior thigh pain, but it only caused minimal stenosis \nand no obvious neural compression.  The assessment provided for cervical spondylosis \nand chronic lumbar radiculopathy and further provided under the plan that he did not have \nmuch  to  offer  her  and  recommended  her  joining  the  aquatics  facility  and  considering \nbariatric  surgery.    The  report  went  on  to  provide  that  the  reason  for  the  referral  was \ndietary.  (Cl.  Ex.  2,  P.  5-7)    A  part  of  the  report  that  had  been  apparently  entered  on \nSeptember  11,  2019,    provided  she  had  developed  increasing  neck  pain,  tingling  and \nnumbness to her arms, with a sense of weakness to her arms. (Cl. Ex. 2, P. 8-11)  The \npart of the report entered August 22, 2019, provided the claimant had earlier fallen down \nsome  stairs  and  since  that  time  had  developed  significant  back  and  leg  pain,  but  had \ngradually improved with the recommended physical therapy. (Cl. Ex. 2, P. 12-15) \n\nSOWELL – G804085 \n \n7 \n \nThe  MRI  of  the  spine  dated  June  15,  2018,  provided  for  a  left  neural  foraminal \nzone disc protrusion without neural foraminal narrowing at L3-4 and L4-5 as mentioned \nsupra. (Cl. Ex 3, P. 1)  A follow-up by Dr. Wilkins on July 2, 2018, provided the claimant \nreported having muscle spasms of her back and had not returned to work due to too many \nrestrictions.  (Cl.  Ex.  3,  P.  5)    An  initial  evaluation  by  Dr.  Vargas  dated  July  9, 2018, \nprovided the claimant had been referred by Workers’ Comp for an evaluation of back and \nhip pain after a fall down some stairs.  She presented with pain and numbness on the left \nside which had been acute since the accident. The report provided for physical therapy \nof  the  lumbar  spine  with  a  burst  of  steroids  and  a  Medral  dose  pack.    The  report  also \nprovided the claimant could return to work on June 10, 2018. (Cl. Ex. 3, P. 9)  The claimant \nreturned  to  Dr.  Vargas  on  August  6,  2018.    This  report  provided  for  mild-multilevel \ndegeneration  of  the  disks  with  some  mild  protrusions.  The  report  also  mentioned \ndegenerative arthritis and  facet arthropathy at  L4-5.   Dr.  Vargas  opined  that the  report \nprovided no objective findings of injury. (Cl. Ex. 3, p. 10)   \nA  sensory  and  motor  nerve  study  was  performed  on  August  23,  2018,  and  the \nreport  provided  no  electrodiagnostic  evidence  of  a  lumbar  radiculopathy,  peripheral \nneuropathy, or focal tibial or peroneal nerve entrapment.  In addition, the L2-3 muscles \nwere  screened  due  to  thigh  complaints  and  were  normal  with  no  focal  lateral  femoral \ncutaneous sensory loss seen on the physical exam. (Cl. Ex. 3, P.11)   \nAn office visit on September 6, 2018, provided the claimant suffered from multilevel \ndegeneration of the disks with some mild protrusions at different levels that were more \npronounced at the L4-5. (Cl. Ex. 3, P.12)  Dr. Vargas released the claimant to full-duty on \n\nSOWELL – G804085 \n \n8 \n \nOctober 4, 201, at maximum medical improvement, with a zero percent (0%) permanent \nimpairment of the lower back. (Cl. Ex. 3, P.14) \n A Functional Capacity Evaluation was performed on October 15, 2018. The \nresults of the evaluation indicated that an unreliable effort was put forth with only 14 of 50 \nconsistency measures within the expected limits.  Consequently, the functional capacity \nof the claimant was unknown. (Cl. Ex. 3, PP. 15-16)  The claimant obtained a change of \nphysician  by  an  Order  from  the  Commission  dated  June  7,  2019,  to  see  Dr.  Noojan \nKazemi, a member of the respondent’s certified managed care organization.  The Order \nprovided  that  any  party  feeling  aggrieved  by  the  Order  could  appeal  within thirty    (30) \ndays, but no appeal was noted in the record. (Cl. Ex. 3, P. 17)  The doctor would not see \nthe claimant without a new MRI and the respondents would not authorize one. (Cl. Ex. 3, \nP. 18)   \nThe    claimant    received    two  (2)  lumbar    medial    branch    blocks   on    March    5, \n2020.   (Cl. Ex. 3, P.20)  Later on June 31, 2019, Stephanie Whaley, the case manager \nissued  an  email  which provided that Dr. Kazemi’s office had cancelled the claimant’s \nappointment  due  to  an  out-of-date  MRI,  but  would  reschedule  once  an  MRI  was \nperformed.  The previous attorney for the claimant withdrew. (Cl. Ex. 3, P.21) \nThe trauma assessment documents  in regard to  the claimant’s visit to Jefferson \nRegional Emergency Room on May 31, 2018, provided the claimant had fallen down three \n(3) stairs on her left side. (Cl. Ex. 4, PP. 25-27)  The diagnosis provided for a contusion \nof the left and right hand, a knee contusion, and a lumbar strain. (Cl. Ex. 4, PP. 29–31)  \nThe  radiology  reports  in  regard  to  her  spine  provided  that  vertebral  body  heights and \nintervertebral   disc   spaces   were   normal   and   no   acute   or   osseus   lesions   were \n\nSOWELL – G804085 \n \n9 \n \ndemonstrated. (Cl. Ex. 4, PP. 32–35)  An MRI report dated June 15, 2018, provided for \nnormal alignment, vertebral body heights and intervertebral disc spaces. (Cl. Ex. 4, P. 54)  \nAn   MRI   report   dated   September   18,   2019,   provided   that   there   were   no   acute \nposttraumatic  abnormalities  but  multilevel  degenerative  changes  in  the  mid  to  lower \ncervical  spine,  specifically  degenerative  disc  disease  at   L3-4  and  L4-5.   (Cl. Ex. 4, \nPP. 209-210)    \nA cervical MRI was obtained on February 9, 2021, due to a history of neck pain.  \nThe report provided multilevel degenerative changes, with mild foraminal stenosis on the \nleft at C3-4 and bilaterally at C 4-5. (Cl. Ex. 4, P. 264)  The claimant returned to Jefferson \nRegional  for  left  foot  pain  and  an  x-ray  was  provided  on  February  23,  2022.    An \nunremarkable radiographic evaluation of the foot resulted. (Cl. Ex. 4, P. 284) \nIt is noted that “Claimant’s Exhibit Six” is a repeat of an earlier exhibit. \nThe respondents exhibit included the deposition of the claimant as “Respondents’ \nExhibit  1”  in  the  matter  currently  before  the  Commission.  A  second  deposition  of  the \nclaimant taken in the case of Lisa Sowell v. Evergreen Packaging which was pending in \nthe United States District Court for the Eastern District of Arkansas, Pine Bluff Division, \nwas also admitted into the record without objection. (Resp. Ex. 2)  In this deposition, the \nclaimant was asked if she was aware that her therapist had indicated that her complaints \nwere inconsistent with the severity of her injury and she responded she had not been told \nthat. (Resp. Ex 2, PP. 62-63)  The claimant also admitted in this deposition that Dr. Vargas \nhad removed her work restrictions. (Resp. Ex. 2, P. 68)  The claimant was also questioned \nabout a letter she had written where she stated she was disabled, could not lift over five \n(5) pounds, could not bend over, could not stand over fifteen (15) minutes, and could not \n\nSOWELL – G804085 \n \n10 \n \nsit over  twenty (20) minutes, and in response she admitted that no doctor had told her \nthat.  She also admitted that when she wrote the letter, Dr. Vargas had already released \nher to return to full-duty. (Resp. Ex 2, P. 74)     \nThe  respondents  also  submitted  the  deposition  of  Dr.  Victor  Vargas,  which  was \nadmitted  into  the  record  without  objection  as “Respondents’  Exhibit  3”.  He  was \nquestioned  about  a  Functional  Capacity Evaluation  and  responded,  “The  functional \ncapacity  evaluation  is  tailored  to  evaluate  the  patient  and  they  supposed  to  do  a \nstandardized evaluation and physical and that’s why the report it come to us after it’s \ndone,  but  there  are  some  providers  who  do  that.    I  don’t  do  functional  capacity \nevaluations.”  He agreed that a physical therapist performed the evaluation. (Resp. Ex. 3, \nPP. 15-16)   Dr. Vargas admitted he had performed a physical evaluation of the claimant \nwhen she came with an MRI, after being referred by the workers’ compensation carrier.  \nHe went on to state, “I did not find specific injury.  I found a complaint of symptoms of \nback pain and we did evaluation with x-rays, did not show any evidence of acute injury.  \nAnd I reviewed a report of the MRI that was at that moment only available, no images, \nthat showed no evidence of acute injury.”  He acknowledged disc protrusions at L3-4 and \nL4-5. (Resp. Ex. 4, PP. 20-21)  The following questioning then occurred: \nQ.  Are those injuries consistent with the type of fall she had? \n \nA.  These are not injuries.  Those are degeneration of the disk, and other changes \nthat she has in the lumbar spine are consistent with degeneration.  The MRI was \ndone a few days after the injury. \n \nQ.  You didn’t attribute it to degeneration at the time? \n \nA.  No.  No.  There’s no relation in those findings with the injury. \n \nQ.  Sir? \n \n\nSOWELL – G804085 \n \n11 \n \nA.  The findings of the MRI, those are not injuries.  Those findings are degeneration \nof the spine. \n \nQ.  You’re making a subjective decision on that, are you not? \n \nA.  That’s what we know about those findings and the MRI.  That, along with the \nother findings she has in the lumbar spine, it shows some mild protrusions of the \ndisks,   those   are   degeneration.      Bulging   of   the   disks   are   not   considered \nposttraumatic, like fractures or other herniated disks with extrusions.  \n(Resp. Ex. 3, P. 22)  \n \nDr. Vargas was then asked the following question: \n \nQ.  Well do you agree that the disk protrusions are consistent with a fall, whether \nthey’re due to degenerative disease or aggravated?  Do you agree that that’s \nconsistent with that type of accident? \n \nA.  No.  I don’t consider that those findings on the report are consistent with an \ninjury  to  the  spine.   That’s what I said.  There’s a degeneration of the spine.  \nThere’s no evidence in that MRI report that she had an injury to the spin.  So those \nbulging disk and protrusions are, in my opinion, not post traumatic. (Resp. Ex. 3, \nP. 24) \n \nHe did admit that the fall could have aggravated her problem. (Resp. Ex. 3, P. 25) \n \nThe  respondents  also  submitted  a  complaint  filed  in  the  Eastern  District  of  the \nUnited  States  District  Court  alleging  a  violation  of  42  U.S.C.  12112(a)  and  an  EEOC \nclaim. (Resp. Ex. 4, PP. 1-8)  In regard to the change of physician,  an email from the \nCommission  dated  November  4,  2021,  provided  that a  change of physician  had  been \nrequested, and it requested a recommendation for a referral so the matter could be sent \nto the physician for review.  An email from the Steele Law Firm appeared to state that \nan attempt to locate a doctor who would see the claimant without a new MRI was being \nattempted. (Resp. Ex. 4, PP. 9-16) \nFinally, the respondents also submitted medical records in regard to this claim, and \nwhich additionally included physical therapy reports from July 13, 2018, through July 23, \n2018,  with  the  reports  referring  to  probable  multiple  level  degenerative  changes  and \n\nSOWELL – G804085 \n \n12 \n \nlumbar strain/sprain. (Resp. Ex. 5, PP. 7-20)  The claimant returned to physical therapy \non    the    dates    of    July    24,  2018,    through    August  3,  2018,  with  the  reports  again \nproviding for multiple level degenerative changes and referring to ischial bursitis. (Resp. \nEx. 5, PP. 23-34) \nThe claimant presented to Dr. Vargas on August 6, 2018, and his report provided \nthat the MRI showed degenerative disc disease and recommended weight loss and an \nEMG study.  (Resp. Ex. 5, PP. 35-37)  The claimant continued to receive physical therapy \nfrom  August  6,  2018,  through  August  23,  2018.    The  respondents  also submitted  the \nEMG nerve conduction study performed by Dr. Sprinkle as mentioned, supra. In addition, \nthe  report  by  Dr.  Vargas  as  described, supra  was  included  which  provided  for  a  zero \npercent (0%) impairment rating. \nThe  respondents  also  introduced  the  emergency  room  records  for  the  claimant \nafter  an  automobile  accident  where  there  was  a  complaint  of   neck  and  low  back \npain,  and  the  report  provided  for  normal  x-rays  and  a  discharge  home.  (Resp. \nEx.  5, PP. 96-104)  The respondents also introduced records from Liberty Chiropractic, \nwith the initial visit on December 13, 2019, which referred to the automobile accident of \nNovember 11, 2019, and shoulder, legs neck, back and arm pain along with two (2) big \ntoes.  The physicians report from Liberty Chiropractic on January 16, 2020, provided the \nclaimant had made a complete recovery. (Resp. Ex. 5, PP. 105-128)   \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nI. \nIn regard to the issue of constitutionality and due process regarding the Arkansas \nWorkers’  Compensation  Commission,  the  Arkansas  Court  of  Appeals  has  soundly \nrejected   similar   arguments   in   regard   to the  Arkansas  Workers’  Compensation \n\nSOWELL – G804085 \n \n13 \n \nCommission Act being unconstitutional.  Sykes v. King Ranch Ready Mix, Inc., 2011 Ark \nApp. 271;  Rippe v. Delbert Hooten Logging, 100 Ark. 277, 266 S.W. 3d 217 (2007);  Long \nv. Wal Mart Stores, Inc., 98 Ark. App. 70, 250 S.W.3d 263 (2007).  That based upon the \nabove,  it  is  found  that the  challenges to the Arkansas Workers’ Compensation Act are \nwithout merit and the Act is in fact constitutional. \nII. \nAdditionally, the claimant objected to the admissibility of the Functional Capacity \nEvaluation and contended that Daubert was applicable, and consequently, the evaluation \nwas inadmissible.  The evaluation was admitted at the time of the hearing due to the clear \nfact that the Commission has broad discretion in regard to the admissibility of evidence, \nand that its decision will not be reversed absent a showing of abuse of discretion.  Brown \nv. Alabama Elec. Co., 60 Ark. App. 138, 959 S.W.2d 753 (1998).  Ark. Code Ann. §11-9-\n705(a)  goes  as  far  to  state  that  the  Commission, “shall not be bound by technical or \nstatutory rules of evidence or by technical or formal rules of procedure. \nA  deeper  review  of Daubert  provides  that  Arkansas  courts  have  adopted  the \nDaubert standard on other issues and it requires the trial court to conduct a preliminary \ninquiry  focusing  on  the  reliability  of  the  process  used  to  generate  the  evidence,  the \npossibility that admitting the evidence would overwhelm, confuse, or mislead the jury, and \nfinally review the connection between the evidence to be offered and the disputed factual \nissues  in  the  particular  case. Farm  Bureau  Mutual  Ins.  Co.  v.  Foote,  341  Ark.  105,  14 \nS.W.3d  512  (2000).    Here  there  is  no  jury  to  mislead  and  the  Functional  Capacity \nEvaluation  has  been  used for  years  with  the Commission proving  itself  competent  and \ncomfortable in evaluating these tests and giving it the appropriate weight in reaching its \ndecisions.  Further, there is clearly a connection between the evidence offered by the test \n\nSOWELL – G804085 \n \n14 \n \nand  the  disputed  factual  issue.  Consequently,  the  Functional  Capacity  Evaluation  is \nadmissible. \nIII. \nIn  the  current  matter  before  the  Commission,  Dr.  Vargas  the  treating  physician, \nnor any other physician placed any restrictions on the claimant.  Although the claimant \nhas asked for another MRI, she has received multiple MRIs from the date of the fall on \nthe stairs.  The multiple MRIs always provided for multilevel degenerative disc disease.  \nA   sensory   and   motor   nerve   study   was   also   performed   which   provided   for   no \nelectrodiagnostic evidence of lumbar radiculopathy, peripheral neuropathy, or focal tibial \nor peroneal never entrapment.  Dr. Vargas released the claimant on September 6, 2018, \nto full-duty with an entitlement to a zero percent (0%) impairment rating in regard to her \nlower  back.    Claimant  was  later  involved  in  an  automobile  accident  and  the  radiology \nreports in regard to her spine following the accident provided her vertebral body heights \nand  the  intervertebral  disc  spaces  were  normal,  and  later  this  appeared  to  be  at  least \npartially  confirmed  by an  MRI of  the  cervical  area,  which  also  referred  to  degenerative \nchanges in the mid to lower cervical spine.  Dr. Vargas testified he found no specific injury \nand  the  physical  therapy  reports  involving  the  claimant  also  referred  to  degenerative \nchanges.  Finally, Liberty Chiropractic records after the automobile accident provided that \nthe claimant had made a complete recovery.  \nIt was stipulated that the claimant suffered a compensable lower back injury.  The \nclaimant is therefore not required to establish “objective medical findings” in order to prove \nthat she is entitled to additional benefits. Chamber Door Indus., Inc. v Graham, 59 Ark. \nApp. 224, 956 S.W.2d 196 (1997).  However, when assessing whether medical treatment \nis reasonably necessary for the treatment of a compensable injury, we must analyze the \n\nSOWELL – G804085 \n \n15 \n \nproposed  procedure  and  the  condition  that  it  is  sought  to  remedy.   Deborah  Jones  v. \nSeba, Inc., Full Workers’ Compensation filed December 13, 1989. (Claim No. D512553).  \nThe respondent is only responsible for medical services which are causally related to the \ncompensable  injury.    Treatments  to  reduce  or  alleviate  symptoms  resulting  from a \ncompensable  injury,  to  maintain  the  level  of  healing  achieved,  or  to  prevent  further \ndeterioration  of  the  damage  produced  by  the  compensable  injury  are  considered \nreasonable  medical  services. Foster  v.  Kann  Enterprises,  2009  Ark.  App.  746,  350 \nS.W.2d  796  (2009).    Liability  for  additional  medical  treatment  may  extend  beyond  the \ntreatment healing period as long as the treatment is geared toward management of the \ncompensable injury. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 180 S.W.3d 31 \n(2004).  Dalton  v.  Allen  Engineering  Co.,  66  Ark.  App  260,  635  S.W.2d  543.    Injured \nemployees  have  the  burden  of  proving,  by  a  preponderance  of  the  evidence,  that  the \nmedical treatment is reasonably necessary for the treatment of the compensable injury. \nOwens  Plating  Co.  v.  Graham,  102  Ark.  App  299,  284  S.W.  3d  537  (2008).    What \nconstitutes reasonable and necessary treatment is a question of fact for the Commission. \nAnaya v. Newberry’s 3N Mill, 102 Ark. App. 119, 282 S.W.3d 269 (2008).  Here, even if \ntotally disregarding the Physical Capacity Evaluation, all the remaining evidence provides \nthat  the  claimant’s  problems  are  the  result  of  degenerative  disc  disease  and  not \na  work-related  injury,  based  upon  the  evaluations  by  Dr.  Vargas  and  other  healthcare \nproviders, along with various x-rays and MRIs.  Consequently, it is clear the claimant has \nfailed  to  satisfy  the  required  burden  of  proof  for  additional  medical  treatment  and \nspecifically for an additional MRI and additional physical therapy. \n  \n\nSOWELL – G804085 \n \n16 \n \nIV. \nIn regard to Permanent and Total Disability benefits, Ark. Code Ann. § 11-9-519(e) \nprovides: \n(1) Permanent and total disability means inability because of compensable injury \nor  occupational  disease  to  earn  any  meaningful  wages  in  the  same  or  other \nemployment. \n(2) The  burden  of  proof  shall  be  on  the  employee  to  prove  inability  to  earn  any \nmeaningful wage in the same or other employment. \nArk. Code Ann. §11-9-102 (4) (F) provides as follows: \n(ii)  (a)  Permanent  benefits  shall  be  awarded  only  upon  a  determination  that  the \ncompensable injury was the major cause of the disability or impairment. \n(b) If any compensable injury combines with a preexisting disease or condition or \nthe natural process of aging to cause or prolong disability or need for treatment, \npermanent  benefits  shall  be  payable  for  the  resultant  condition  only  if  the \ncompensable  injury  is  the  major  cause  of  the  permanent  disability  or  need  for \ntreatment. \nHere, the claimant has failed to prove that the compensable injury was the major \ncause of any permanent and total disability.  When making this determination in regard \nto  the  issue  of  permanent  and  total  disability  based  upon  the  applicable  law  and  the \nevidence discussed supra, there is no alternative but to find that the claimant has failed \nto satisfy her burden of proof in demonstrating, by the credible evidence of record, that \nshe is permanently and totally disabled. \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, it is found that the claimant has failed to satisfy her burden of proof that she \n\nSOWELL – G804085 \n \n17 \n \nis  entitled  to  additional  medical  treatment,  specifically  an  additional  MRI and  physical \ntherapy.    Additionally, the  claimant  has  failed  to  satisfy her  burden of  proof  that  she  is \nentitled to permanent total disability.  If not already paid, the respondents are ordered to \npay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G804085 LISA SOWELL, EMPLOYEE CLAIMANT VS. EVERGREEN PACKAGING, LLC, EMPLOYER RESPONDENT ACE AMERICAN INSURANCE COMPANY / GALLAGHER BASSETT SERVICES, INC., CARRIER /TPA RESPONDENT OPINION FILED JANUARY 10, 2023 Hearing before Administrative Law Judge, James...","fetched_at":"2026-05-19T23:11:12.984Z","links":{"html":"/opinions/alj-G804085-2023-01-10","pdf":"https://labor.arkansas.gov/wp-content/uploads/SOWELL_LISA_G804085_20230110.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}