{"id":"alj-G807027-2025-02-18","awcc_number":"G807027","decision_date":"2025-02-18","opinion_type":"alj","claimant_name":"David Burkholder","employer_name":"Acme Brick Company","title":"BURKHOLDER VS. ACME BRICK COMPANY AWCC# G807027 February 18, 2025","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["back","neck","lumbar","cervical","thoracic"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/BURKHOLDER_DAVID_G807027_20250218.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BURKHOLDER_DAVID_G807027_20250218.pdf","text_length":30565,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G807027 \n \nDAVID BURKHOLDER, Employee CLAIMANT \n \nACME BRICK COMPANY, Employer RESPONDENT NO. 1 \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 \n \n OPINION FILED FEBRUARY 18, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents No.  1 represented  by GUY  ALTON  WADE,  Attorney  at  Law, Little  Rock, \nArkansas. \n \nRespondent No. 2 represented by CHRISTY L. KING, Attorney at Law, Little Rock, Arkansas, \nalthough not appearing at hearing. \n \n STATEMENT OF THE CASE \n \n On November 21, 2024, the above captioned claim came on for a hearing at Fort Smith, \nArkansas.   A pre-hearing conference was conducted on September 23, 2024, and a Pre-hearing \nOrder  was  filed  on September  27,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The  relationship  of  employee-employer-carrier  existed  between  the  parties on  March \n20, 2018. \n\nBurkholder – G807027 \n \n-2- \n 3. The claimant sustained a compensable injury to his low back on or about  March 20, \n2018 \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $673.00 for temporary total disability benefits and $505.00 for permanent partial \ndisability benefits. \n 5. All prior opinions are final and res judicata. \n By agreement of the parties the issue to litigate is limited to the following: \n 1.  Whether  Claimant  is  entitled  to  medical  treatment  in  the  form  of  a  spinal  cord \nstimulator as recommended by his authorized treating physician. \n The claimant's contentions are as follows: \n“The    Claimant    contends    that    the    spinal    cord    stimulator \nrecommended  by  his  authorized  treating  physician  is  reasonably \nnecessary  and  therefore  the  respondents  should  be  ordered  to \napprove and pay for said stimulator.” \n \n Respondents’ No. 1’s contentions are as follows: \n“Respondents  contend  the  proposed  treatment  is  not  reasonable \nand  necessary  in  relation  to  the  compensable  injury  and  does  not \nmeet  the  required  pre-certification  required  in  accordance  with \nCommission  Rule  30.  As  an  alternative,  respondents  propose  an \nIME  to  determine  any  possible  future  reasonable,  necessary  and \nrelated treatment recommendation and/or plan.” \n \n The claimant in this matter is a 60-year-old male who sustained a compensable low back \ninjury on March 20, 2018. The claimant has a long history of treatment for his compensable low \nback injury, including both conservative and surgical care. The claimant’s treatment is well \ndocumented in Dr.  Claude  L.  Martimbeau’s  “independent  medical  evaluation”  report  dated \nNovember 14, 2024, and found at Respondents’ Exhibit 2. Dr. James Blankenship began treating \nthe claimant in January of 2019 and continues to treat the claimant at the time of the hearing in \n\nBurkholder – G807027 \n \n-3- \nthis  matter.  The  claimant  has  asked  the  Commission  to  determine  if  he  is  entitled  to  additional \nmedical treatment in the form of a spinal cord stimulator trial that has been recommended by Dr. \nBlankenship. \n The claimant’s wife, Cynthia Burkholder, was called as a witness at the hearing in this \nmatter. Ms. Burkholder was asked about falling events found in her husband’s medical records \non direct examination as follows: \nQ The  medical  records  talk  about  him  complaining  about \nfalls. Have you ever actually witnessed him fall? \n \nA Yes. \n \nQ And  has  the  frequency  of  those  falls  changed  any  between \nwhen they first started and now? \n \nA Yes, sir. They are definitely more frequent. \n \nQ Give  us  some  examples  of  situations  where  you  noticed \nhim fall. \n \nA Trying  to  get  up  out  of  his  recliner.  Trying  to,  you  know, \nget up and turn and when he turns it’s – you know, he will just go \ndown. Most of the time he will catch himself before he goes all the \nway down, but not always. \n \nQ Now,  although  his  primary  or  his  initial  injury  was  to  his \nlow back in March of 2018, the records indicate that in November \nof 2020, his leg gave out on him and he fell and hurt his mid back. \nDo you recall that? \n \nA Yes. \n \nQ So he is not always able to catch himself when he falls? \n \nA He is not always able to catch himself. \n \n The claimant also gave direct examination testimony about his falling events as follows: \n \nQ So  do  your  legs  just  give  way  out  from  under  you  or  does \nthe pain make you fall or what happens? \n\nBurkholder – G807027 \n \n-4- \n \nA I get a real sharp pain going down my butt cheek and down \nmy  leg  and  as  soon  as  that  pain  shoots  down – and  it  is  normally \nmy right leg – it goes completely out. (Witness snaps his finger.) It \nis that quick. \n \nQ Now, you underwent surgery on your mid back because of \na fall that you had in 2020; is that right? \n \nA That’s right. \n \nQ And have the falls continued since then? \n \nA Yes. \n \nQ Have  they  gotten  less  frequent  or  about  the  same  or  more \nfrequent? \n \nA I think I am falling more now. I am having to catch myself \nmore now than I did before. \n \n Additionally,  the  claimant  was  asked  about  his  belief  as  to  whether  his  condition  had \nimproved or worsened since 2021 on direct examination: \nQ Well,  let  me  just  suggest  to  you  that  there  is  a  medical \nreport from Dr. Heim that is dated October the 14\nth\n of 2021. So if \nthe report says that he examined you, you don’t have any reason to \nbelieve he didn’t, do you? \n \nA No.  My  wife  puts  all  my  appointments  and  everything  up \nand takes me. \n \nQ Okay.  In  his  report  at  that  point,  he  says  he  believes  you \nhad  an  18  percent  permanent  impairment  to  the  body  as  a  whole. \nYou were examined by another doctor that the insurance company \nsent  you  to  fairly  recently  and  that  doctor  says  you  have  a  35 \npercent  permanent  impairment  to  the  body  as  a  whole.  That  was \nDr.   Martimbeau.   Do   you   think   your   condition   has   changed \nbetween October of 2021 and today? \n \nA It seems like I hurt more now than I did then. \n \nQ So you think it is worse? \n \n\nBurkholder – G807027 \n \n-5- \nA I think it is definitely worse. \n \nQ What about your falls, are you falling about the same or are \nyou falling more? \n \nA I am falling more. \n \n During  testimony,  the  claimant  also  described  his  current  condition  while  on  direct \nexamination as follows: \nQ So  what  is  the  major  issue  that  you  have  got  in  terms  of \nyour  condition  right  now,  from  your  perspective?  What  is  your \nmain problem? \n \nA My  lower  back,  my  center  back,  it  is  constantly  in  pain.  I \nget  positioned  one  way  to  try  to  get  some  relief  from  my  lower \nback and then my center back starts hurting. Then I have to move a \ndifferent  way  to  try  to  get  my  center  back  from  hurting.  Then  my \nlower back gets hurting. I just can’t get comfortable. No matter \nwhat position I get into, I can’t stay there that long. \n \nQ Now,  the  psychology  report  says  that  you  haven’t  been \ntaking all of the pain medication that has been prescribed for you. \nIs that true? \n \nA I was – \n \nQ Just listen to my question. Is it true that you have not taken \nall of the pain medication? \n \nA I  have  taken  every  bit  of  the  pain  medicine  that  they  gave \nus. \n \nQ Okay.  Did  you  at  some  point  stop  taking  the  narcotic  pain \nmedication? \n \nA I don’t know what that is. \n \nQ Well,  did  some  of  the  medications  cause  you  some  side \neffects? \n \nA They would – \n \n\nBurkholder – G807027 \n \n-6- \nQ Okay.  Listen  to  my  question.  My  question  is  simply  did \nsome of the medications cause you some side effects? \n \nA Yes. \n \nQ Now, what were those side effects? \n \nA I  would  get  real  light-headed  and  it  would  make  me  fall  a \nlot more than normal when I was taking that medicine. And it gave \nme – it messed with my stomach. Made me feel like I was going to \nget sick. \n \nQ And were those the narcotic pain medications that you were \ntaking? \n \nA Yes. \n \nQ That were causing you to have problems? \n \nA Yes. \n \nQ And  when  those  issues  kept  bothering  you,  did  you  stop \ntaking  the  narcotic  pain  medication  and  continue  to  take  the  other \nstuff that your wife talked about? \n \nA Yes. \n \n The  claimant  was  seen  by  Dr.  James  Blankenship  on  May  25,  2023.  Following  is  a \nportion of that visit note: \nHPI: \nThe  patient  is  in  today  for  followup.  He  is  eight  months  out  from \nhis  surgical  intervention.  He  does  have  an  MRI  for  review  today. \nThe  MRI  was  actually  done  in  February.  We  reviewed  it  and  got \nhim back in. We told him to get back into some physical therapy as \nwell  as  get  and  injection.  Unfortunately  he  did  not  start  his \nphysical  therapy.  He  has  continued  to  do  his  home  exercises.  He \nsaw  Dr.  Cannon  for  an  LESI.  This  gave  him  very  minimal  relief. \nHe  is  still  having  low  back  pain  that  radiates  to  the  bilateral  hips, \nbilateral  buttocks,  and  goes  down  the  bilateral  lower  extremities. \nThe right is worse than the left. He is also having some neck pain \nand   significant   headaches.   Sitting,   walking,   and   standing   all \naggravate  his  pain.  He  states  he  has  decreased  strength  in  both \n\nBurkholder – G807027 \n \n-7- \nlegs,  right  greater  than  left.  Extension  aggravates  this  pain.  He  is \nstill taking Celebrex, Lyrica, and Baclofen as needed for pain. \n \n*** \nImpression: \nMr.  Burkholder  is  in  for  his  eight-month  postop  visit.  His  plain \nradiographs look good. I have reviewed his MRI in its entirety. He \namazingly  does  not  have  any  significant  advancement  of  adjacent \nsegment  disease  between  this  thoracotomy  fusion  and  his  lumbar \nfusion.  He  does  have  facet  arthropathy  but  nothing  of  marked \nsignificance.  There  are  no  gross  complications  of  the  orthopedic \nimplants  noted  and  the  pedicle  screws  appear  to  be  in  good \nposition. \n \n*** \nRecommendations: \nWe  will  set  him  up  for  an  injection.  I  also  recommended  he  get \nback  in  working  with  Steve  with  physical  therapy.  He  declined  to \ndo  that.  Mr.  Burkholder  says  that  his  lower  back  pain  is  the  same \nas it has been. He also has bilateral lower extremity pain. His ESI \nafforded  him  some  very  minimal  relief.  I  told  him  unfortunately  I \nthink we have done all we can do. He does not have any significant \nadjacent segment disease. His radiographs look good with no gross \ncomplications. I told him unfortunately I think he is falling into the \n10%  that  we  warn  preoperatively  that  might  not  do  well.  This \nreally  frustrated  him  because  the  surgery  that  has  a  larger  failure \nrate is the thoracotomy and he has done well with that. \n \nThat  being  said,  he  is  also  having  some  new-onset  headaches.  I \ntold  him  that  unfortunately  with  all  that  is  going  on,  I  would \nrecommend   that   we   get   a   cervical,   thoracic,   and   lumbar \nmyelogram.  I  will  review  this  and  we  will  call  him  with  a  further \ntreatment plan. \n \n On  January  25,  2024,  the  claimant  again  saw  Dr.  Blankenship  regarding  his  low  back \ncondition. Following is a portion of that medical report: \nImpression: \nHis chief complaint is lower back pain. The patient’s right leg is \ngiving out on him. We did an ACDF on him in May of 2022. We \ndid  a  myelogram  on  him  both  on  his  low  back  and  neck  in \nSeptember  of  last  year.  First  of  all  I  have  looked  at  his  cervical \nspine.  His  cervical  spine  sows  the  spinal  cord  is  completely \ndecompressed  with  no  residual  stenosis.  His  implant  is  slightly \n\nBurkholder – G807027 \n \n-8- \nanterior  to  C3-C4  with  some  subsidence  and  the  plate  is  slightly \nanteriorly placed. It does appear that he has solid fusion behind the \nimplant  which  would  be  indicative  of  solid  arthrodesis.  The  most \nimportant part of this his spinal cord is well-decompressed with no \nresidual  stenosis.  The  implant  has  been  like  this  in  his  cervical \nspine.  Postoperative  radiographs  a  year  ago  demonstrate  that  the \nanterior  placement  of  his  implant  is  unchanged  over  the  last  year. \nHis SI joint examination is completely negative. His intraoperative \nradiographs  do  demonstrate  that  the  plant  is  slightly  anterior.  I  do \nnot   think   it   has   really   changed   since   then.   His   piriformis \nexamination  is  also  negative.  His  myelogram  of  his  lumbar  spine \nlast  year  really  confirms  what  we  already  knew.  First  of  all  the \ndistal construct shows his spinal cord well-decompressed. He does \nnot  have  any  significant  stenosis.  His  sagittal  imaging  gives  the \nimaging of possible arachnoiditis but the axial images demonstrate \nwell-separated  nerve  roots.  He  does  not  have  any  significant \nstenosis at the C1-C2 and C2-C3 levels in between. At the surgical \nsite  just  as  his  MRI  demonstrates,  he  has  good  decompression.  I \nagree  with  the  reviewer  there  is  some  lucency  around  the  right \ncortical screw of L3 but he appears to have good bond formation in \nand  around  the  ENZA  implant  so  I  do  think  he  is  solidly  fused.  I \nhave  had  Dr.  Cannon  check  him  out  today.  I  cannot  find  a \nneurologic  etiology  for  his  leg  weakness.  What  I  do  know  is  Mr. \nBurkholder  has  always  been  real  solid.  We  did  a  thoracotomy  on \nhim.   He   did   fantastic   and   actually   did   not   have   any   really \nsignificant post thoracotomy pain. \n \nRecommendations: \nI have had Dr. Cannon check in on him today and see if he has any \nthoughts  about  the  pain  he  is  having.  It  is  around  the  L4-L5  level \nbut it is really axially located and is point tender. Dr. Cannon and I \nagree that the first step on his lower back would be to do a trigger \npoint injection in the muscle at the exact place where he is hurting. \nIf that helps and is still helping, we are going to get him in to see \nSteve to do some physical therapy. If it does not help at all, we are \ngoing  to  do  an  S1  joint  injection  higher  up  in  the  joint.  If  that \nworks  but  it  comes  back  we  can  always  talk  about  an  arthrodesis. \nIf that does not help at all I am going to put my thinking cap back \non. I do want to get EMG’s and nerve conductions on the right \nlower extremity. We will get him in to see Dr. Mike Morse and get \nthat done. I told him that unfortunately even if it shows something \nthere   is   not   much   we   can   do   about   it   but  it   will   be   good \ninformation.  Lastly  the  area  in  between  where  I  have  operated,  I \nthink it is time for us to discuss fusing that but this is a secondary \nplace  although  it  had  him  down  all  weekend  so  I  do  not  think  we \n\nBurkholder – G807027 \n \n-9- \nare  at  the  point  where  we  are  going  to  talk  bout  that  until  we  can \nfigure out what is going on with this spot in his lower back. \n \n On May 16, 2024, Dr. Blankenship authors a note regarding the claimant’s recent EMG \nand  nerve  conduction  tests.  In  that  same  note,  Dr.  Blankenship  discusses  a  dorsal  column \nstimulator for the claimant as follows: \nMr.   Burkholder   did   get   his   EMGs   and   nerve   conductions. \nUnfortunately, he cannot find any neurologist that is willing to see \na workers’ comp patient for all the headaches that you have to go \nthrough.   His   EMGs   did   not   demonstrate   any   evidence   of \nneuropathy  affecting  his  lower  extremity.  I  have  had  Rhonda  call \nand talk to David and tell him that really all I have left to offer him \nwould be a consideration for a dorsal column stimulator trial. If he \nis interested, they are going to run by and get the literature on this. \nIf he wants to proceed on with it, then we will start the ball rolling \nwith  his  workers’  comp  carrier  and  getting  his  psychological \ntesting. \n \n On  June  13,  2024,  the  claimant  is  again  seen  by  Dr.  Blankenship  and  has  a  discussion \nabout having a dorsal column stimulator trial. Following is a portion of that medical record: \nHPI: \nThe  patient  is  in  today  for  evaluation.  His  greatest  pain  complaint \nis  his  low  back  pain  that  radiates  to  bilateral  hips,  bilateral \nbuttocks,  and  goes  down  bilateral  lower  extremities  anterolateral \nand posterior. He states that his leg pain is equal. He rates it about \n70%  towards  the  worst  pain  imaginable.  He  is  also  still  having \nsome  neck  pain  but  states  that  that  is  very  minimal,  and  he  is \npleased  with  his  surgical  outcome.  He  was  given  a  dorsal  column \nstimulator  video  to  watch,  and  he  states  that  he  is  interested  in \nhaving a dorsal column stimulator trial. \n \n*** \nImpression: \nWe discussed in detail with Mr. Burkholder about a possible dorsal \ncolumn  stimulator  trial.  He  did  want  to  proceed  on  with  this,  but \nunfortunately his workers’ comp carrier made him come back in to \ntalk  with  me.  We  have  already  talked  about  this  in  detail.  He  has \nwatched the video. He wants to proceed on. \n \nRecommendations: \n\nBurkholder – G807027 \n \n-10- \nWe   need   to   start   the   ball   rolling   as   far   as   getting   his \nneuropsychological  evaluation  and  then  get  him  set  up  for  a  trial \ndate with possible permanent placement. I have told him that I may \nbe wrong and we possibly should be doing the 2 levels that are in \nbetween   his   thoracotomy   and   arthrodesis   in   his   lumbosacral \narthrodesis, but he just does not have a lot of disc space pathology \nat   this   level.   In   summary,   the   patient   has   postlaminectomy \nsyndrome with bilateral lower extremity pain and lower back pain. \nI  think  he  is  an  excellent  candidate  for  a  trial  and  possible \npermanent placement of a dorsal column paddle lead. He wants to \nproceed on with the workup. \n \n The respondent admitted a “physician advisor report” dated July 26, 2024, produced by \nGenex physician Dr. Luc Jasmin. That report considers the recommendation of Dr. Blankenship \nto  place  the  claimant  in  a  dorsal  column  stimulator  trial.  The  report  has  an  “adverse \ndetermination”  to  Dr.  Blankenship’s  recommendation,  based  on  the  lack  of  a  psychological \nevaluation.  This  report  has  little  value  as  a  psychological  evaluation  of  the  claimant  was \nperformed by Dr. Richard Back on September 16, 2024. Following is a portion of the evaluation \nreport: \nMr.  Burkholder’s  Paindex  score,  calculated  from  his  MMPI-2 \nprofile, is 15. This exceeds the cut-off score of 13, which indicates \nhe    is    a    poor    candidate    for    further    conventional    medical \ninterventions.  There  is  only  a  13  percent  chance  of  his  improving \nfrom   such   an   intervention.   This   does   not   mean   that   Mr. \nBurkholder’s symptoms are imagined, it means that overfocus on \nsymptoms  and  perhaps  intragenic  factors  have  made  him  a  poor \ncandidate. \n \nDIAGNOSTIC IMPRESSION: \nSomatic Symptom Disorder with predominant pain \n \nRECOMMENDATIONS: \n1. Consecutive intervention is recommended. \n2. Mr. Burkholder has been wary of pain medication, taking it only \nas  needed.  If  such  intervention  is  tried  again,  he  needs  to  take  his \nmedication on a fixed schedule, taking it (medicine) even when he \nis feeling “okay”, and waiting to the scheduled time even if his \npain  is  severe.  No  increase  in  dosage  should  be  entertained  after \n\nBurkholder – G807027 \n \n-11- \nawhile,  as  this  will  likely  lead  to  habituation,  which  is  what  he, \napparently, fears. \n \n The  claimant  was  again  seen  by  Dr.  Blankenship  on  October  24,  2024,  after  his \npsychological evaluation. Dr. Blankenship discusses that evaluation and his continued belief that \nthe claimant should “proceed on with dorsal column stimulation” as follows: \nHPI: \nThe  patient  is  in  today  for  followup.  We  had  offered  the  patient  a \ndorsal column stimulator. We sent him for a psych eval to see Dr. \nBack, and Dr. Back did not recommend he proceed with the dorsal \ncolumn.  His  notes  re  on  the  chart.  The  patient  still  wants  to \nproceed   on   with   the   dorsal   column   stimulator.   Conservative \ntreatment  has  not  helped  any,  and  he  has  chronic  pain  syndrome, \nlow back pain that radiates to bilateral hips, bilateral buttocks, and \ngoes  down  the  posterior  aspect  of  the  right  lower  extremity.  He \nrates  his  low  back  pain  anywhere  from  60%  to  70%  towards  the \nworst pain imaginable. \n \n*** \nImpression: \nDavid  Burkholder  returns  to  the  office  today.  The  reason  for  this \nvisit  is  both  requested  by  his  workers’  comp  carrier  and  his \nattorney,  Dr.  Eddie  Walker.  I  have  reviewed  Dr.  Back’s \nneuropsychological evaluation. It was Dr. Back’s opinion that he \nhad  only  a  13%  chance  of  improving  with  the  dorsal  column \nstimulator.  I  have  a  great  deal  of  respect  for  Dr.  Back  as  a \nneuropsychologist. I do also appreciate Dr. Back’s assessment that \nthis in now way means that Mr. Burkholder is not hurting. I agree \nwith Dr. Back Mr. Burkholder has been through quite a bit and has \nbeen  hurting  for  quite  some  time.  I  have  the  advantage  of  seeing \nthis patient frequently, as does Steve Flory, my physical therapist. \nThe gentleman has done absolutely wonderfully with every surgery \nwe have done until most recently. \n \nRecommendations: \nWith all due respect to Dr. Back, knowing Mr. Burkholder as well \nas  I  do,  my  offering  of  spinal  cord  stimulation  to  him  still  stands. \nThe  purpose  of  the  trial  is  to  see  if  he  gets  any  benefit.  I  do  feel \ncompletely comfortable that Mr. Burkholder will give us an honest \nand up front assessment of how he does during that week period of \ntime, which will give us an indication of how he is going to do for \na   while.   He   still   wants   to   proceed   on   with   dorsal   column \n\nBurkholder – G807027 \n \n-12- \nstimulation,  and  my  opinion  about  this  being  potential  benefit  to \nhim is unchanged. He understands, and it is my understanding that \nhe  has  a  court  date  to  go  over  all  of  this.  We  will  await  their \nfindings and proceed forward. \n \n The  respondent  sent  the  claimant  to  see  Dr.  Claude  L.  Martimbeau  for  what  Dr. \nMartimbeau termed as an independent medical evaluation on November 14, 2024. As previously \nstated,   Dr.   Martimbeau   includes   an   extensive   listing   of   medical   providers   and   medical \nprocedures  that  the  claimant  has  seen  or  undergone  for  his  compensable  low  back  injury.  Dr. \nMartimbeau also summarizes that treatment inside his 28-page report. Dr. Martimbeau also gives \nthe following diagnosis in his report: \nDIAGNOSES:  Status  post  back  injury,  and  back  pain;  status  post \nC3   through   C6   anterior   cervical   fusion;   status   post   T12 \ncorpectomy  and  arthrodesis  T11  to  L1;  status  post  L3  to  S1 \narthrodesis,  status  post  residual  upper;  and  lower  back  pain,  with \nreferred pain to the upper, and lower extremities. \n \nDr. Martimbeau also addresses a number of questions posed to him by the respondent. Following \nis a portion of those questions and responses: \n1.  Please  address  the  diagnosis,  history  of  injury  and  pre-existing \nconditions. \n \nThe diagnoses are: \n* status post back injury, and back pain \n* status post C3 to C6 anterior cervical fusion \n* status post T12 corpectomy/arthrodesis T11 to L1 \n*  Status  post  residual  upper  and  lower  back  pain,  with  referred \npain to the upper and lower extremities \n \nThe  history  of  the  injury  is  that  on  03/20/2018,  Mr.  Burkholder \nwas on a catwalk while stabilizing a 350 lb. burner block that was \nhanging from a chain. As he was lining it up, he twisted, felt a pop \nand  sharp  pain  in  his  lower  back,  and  immediately  fell  to  the \nground  due  to  the  pain,  possibly  hitting  the  handrail.  There  is  no \npre-existing condition. \n \n\nBurkholder – G807027 \n \n-13- \n2.   Does   medical   documentation   support   a   causal   relationship \nbetween the accident or injury? \n \nYes,  the  medical  documentation  supports  a  causal  relationship \nbetween the accident or injury. \n \n3.  Is  ongoing  treatment  (Orthopedic)  reasonable  and  medically \nnecessary for the accident or injury of record? \n \nYes,   the   ongoing   Orthopaedic   treatment   is   reasonable   and \nmedically necessary for the accident or injury of record. \n \n4.  If  ongoing  treatment  is  reasonable  and  medically  necessary, \nplease  five  [sic]  the  type,  frequency,  and  duration  for  continued \ncurrent treatment in your discipline. \n \nMr.  Burkholder  will  require  follow-up  treatment  for  his  chronic \nupper,  mid,  and  lower  back  pain  with  his  physician(s).  He  may \nrequire  medications,  antalgic  modalities,  LEISs,  and  possibly  a \nneuro-stimulator. Frequency is anticipated every 3 months, or more \nfrequently  if  Mr.  Burkholder  develops  an  acute,  or  sub-acute \ncondition regarding his upper, mid, and/or lower back. Duration of \ntreatment is indefinitely. \n \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \n Dr. Back’s psychological evaluation of the claimant included a Paindex score of 15. That \nwas calculated from the claimant’s Minnesota Multiphasic Personality Inventory-2  (MMPI-2). \nThis is a low score; however, I do recognize it is a score that is higher than the cutoff score of 13 \nas noted by Dr. Back in his report. Dr. Blankenship addresses Dr. Back’s report directly in his \n\nBurkholder – G807027 \n \n-14- \nOctober  24,  2024,  visit  note,  stating,  “I  have  a  great  deal  of  respect  for  Dr.  Back  as  a \nneuropsychologist. I also appreciate Dr. Back’s assessment that this in no way means that Mr. \nBurkholder is not hurting. I agree with Dr. Back Mr. Burkholder has been through quite a bit and \nhas  been  hurting  for  quite  some  time.  I  have  the  advantage  of  seeing  this  patient  frequently,  as \ndoes  Steve  Flory,  my  physical  therapist.  The  gentleman  has  done  absolutely  wonderfully  with \nevery surgery we have done until most recently.” ... “With all due respect to Dr. Back, knowing \nMr. Burkholder as well as I do, my offering of spinal cord stimulation to him still stands.” \n Dr. Martimbeau, to whom the respondent sent the claimant for an “independent medical \nevaluation”  also  recognized  a  neuro-stimulator  and  other  treatments,  including  LESI  and \nmedications, as reasonable and medically necessary treatment for the claimant’s compensable \nlow  back  injury.  Dr.  Martimbeau  does  not  specifically  address  Dr.  Back’s  psychological \nevaluation  when  discussing  the  possibility  of  a  neuro-stimulator  for  the  claimant,  but  he  does \ninclude Dr. Back’s September 16, 2024, psychological evaluation as a document he reviewed for \nhis ”independent medical evaluation” of the claimant. \n Given that the claimant’s psychological evaluation was above the cutoff level according \nto Dr. Back’s report and that both Dr. Blankenship and Dr. Martimbeau still recommend a trial \nspinal cord stimulator after having considered Dr. Back’s report, I find that the trial spinal cord \nstimulator is reasonable and necessary medical treatment for the claimant’s compensable low \nback injury. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n\nBurkholder – G807027 \n \n-15- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nSeptember 23, 2024, and contained in a Pre-hearing Order filed September 27, 2024, are hereby \naccepted as fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nmedical  treatment  in  the  form  of  a  spinal  cord  stimulator  trial  as  recommended  by  Dr. \nBlankenship. \n ORDER \nThe  respondents  shall  pay  the  costs  associated  with  the  spinal  cord  stimulator  trial \nrecommended by Dr. Blankenship. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no indemnity \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded.   Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G807027 DAVID BURKHOLDER, Employee CLAIMANT ACME BRICK COMPANY, Employer RESPONDENT NO. 1 TRAVELERS INDEMNITY CO., Carrier RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED FEBRUARY 18, 2025 Hearing before ADMINISTR...","fetched_at":"2026-05-19T22:43:39.862Z","links":{"html":"/opinions/alj-G807027-2025-02-18","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/BURKHOLDER_DAVID_G807027_20250218.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}