{"id":"alj-G902784-2023-02-28","awcc_number":"G902784","decision_date":"2023-02-28","opinion_type":"alj","claimant_name":"Betty Lewis","employer_name":"Walmart Associates, Inc","title":"LEWIS VS. WALMART ASSOCIATES, INC. AWCC# G902784 FEBRUARY 28, 2023","outcome":"granted","outcome_keywords":["granted:2"],"injury_keywords":["hip","back","neck","knee","lumbar","fracture","herniated","cervical"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//LEWIS_BETTY_G902784_20230228.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LEWIS_BETTY_G902784_20230228.pdf","text_length":45060,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G 902784 \n \nBETTY A. LEWIS, EMPLOYEE         CLAIMANT \n \nv. \n \nWALMART ASSOCIATES, INC., EMPLOYER     RESPONDENT #1 \n \nWALMART CLAIMS SERVICES, CARRIER/TPA   RESPONDENT #1 \n \nDEATH & PERMANENT DISABILIITY  \nTRUST FUND        RESPONDENT #2 \n \nOPINION FILED FEBRUARY 28, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 18\nTH\n day of January \n18\nth\n,  2023, in Mountain Home, Baxter County, Arkansas. \n \nClaimant is represented by Mr. Frederick S. “Rick” Spencer, Attorney-at-Law, Mountain \nHome, Arkansas. \n \nRespondent  is  represented  by  Mr.  R.  Scott  Zuerker,  Attorney-at-Law,  Fort  Smith, \nArkansas. \n \nThe  Death  and  Disability  Trust  Fund  is  represented  by  Mr.  David  L.  Pake,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \nA hearing was conducted on the 18\nth\n day of January, 2023, and the parties agreed \nat  the  time  of  the  hearing  to  narrow  the  issues  to  determining  the  compensability of  a \nwork-related,  left  hip/leg  and  low  back  injury;  reasonable  and  necessary  medical \ntreatment; reimbursement of out-of-pocket medical expenses; and attorney fees, with all \nother  issues  reserved.  The  Trust  Fund  waived  its  right  of  appearance.  The  parties \nstipulated that the Arkansas Workers’ Compensation Commission had jurisdiction of the \nclaim; that the employer/carrier/employee relationship existed on April 16, 2019, and at \nall  relevant  times;  and  that  the  claimant  earned  an  average  weekly  wage  of  $733.08, \n\nLEWIS – G902784 \n \n2 \n \nsufficient   for   temporary   total   disability   and   permanent   partial   disability   rates   of \n$489.00/$368.00,  respectively.    The  employer  controverted  the  claim  in  its  entirety.    A \ncopy of the Prehearing Order was marked “Commission Exhibit 1” and made part of the \nrecord without objection.        \n The  claimant’s  and  respondents’  contentions  are  all  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire  and  made  a  part  of  the  record  without \nobjection.  The witnesses consisted of Edward Lewis, the husband of the claimant, and \nBetty A. Lewis, the claimant.  From a review of the record as a whole, to include medical \nreports and other matters properly before the Commission, and having had an opportunity \nto observe the testimony and demeanor of the witnesses, the following findings of fact \nand conclusions of law are made in accordance with Ark. Code Ann. §11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  That  an  employer/employee  relationship  existed  on  April  16,  2019,  and  all \nrelevant times. \n \n3.  The  claimant  earned  an  average  weekly  wage  of  $733.08,  sufficient  for \ntemporary    total    disability    and    permanent    partial    disability    rates    of \n$489.00/$368.00, respectively. \n \n4.  That  the  claimant  proved,  by  a  preponderance  of  the  evidence,  that she \nsuffered  a  compensable  left  hip/leg  and  low  back  injury  and  is  entitled  to \nreasonable  and  necessary  medical  for  the  treatment,  which  includes  the \npayment  of  any  reasonable  and  necessary, out-of-pocket  medical  expenses \npaid by the claimant.  \n \n5.  The claimant is entitled to attorney fees pursuant to Ark. Code Ann. §11-9-715.  \nThis  Award  shall  bear  interest  at  the  legal  rate  pursuant  to Ark. Code \nAnn. § 11-9-809. \n \n6.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n\nLEWIS – G902784 \n \n3 \n \nREVIEW OF TESTIMONY AND EVIDENCE \n The Prehearing Order along with the prehearing questionnaires of all the parties \nwere admitted into the record without objection.  The claimant submitted medical records \nand the deposition of Dr. Lon Burba as exhibits that were admitted without objection.  The \nrespondents also submitted medical exhibits and the deposition of the claimant, plus a \nCD  video  and  all  were  admitted  without  objection.  The  parties  also  submitted  a  joint \nexhibit which consisted of eighteen (18) pages of a synopsis of the medical records.    \n The claimant’s husband, Edward Lewis, was the first witness to testify.  He testified \nhe had been married to the claimant for fourteen (14) years and she had worked for the \nrespondent for twenty-five (25) years. (Tr.pp. 6-7)   The claimant had no issues with her \nback, hip, or while walking prior to her injury at Walmart.  He became aware of her injury \non the day of the injury when she called him from home, before going to Sherwood Urgent \nCare.  He got to the clinic first and met her there.  She was talking about her pain, how \nshe had gone home and sat on the couch and couldn’t get up and had difficulty walking. \n“She kept complaining about her back and her neck all the time.”  In regard to before and \nafter  the  injury,  he  stated  that  the  difference  was, “before she had the injury she  was \nactive, she was in quilt groups, she was in like three or four different quilt groups and she \nwas also doing crocheting.  She was all the time active.”  She was unable to do  those \nthings after the accident.  She couldn’t sleep due to the pain. (Tr.pp. 8-10)  He went on to \nstate he quit his job and retired to drive her to the doctors and care for her and the home.  \nHe also remembered she had been in a cooking group prior to her injury. (Tr.p. 11)  She \nnever complained about her back and neck prior to the injury.  He stated that they would \nwalk together, walking about five (5) miles in an hour and thirty (30)  to forty (40) minutes, \n\nLEWIS – G902784 \n \n4 \n \nafter work two (2) times a week on average. (Tr.p. 12)  After the accident she received \nsixteen  (16)  shots,  and  sometimes  after  the  shots,  she  was  unable  to  do  anything. \n(Tr.p.13)  The sixteen (16)  or seventeen (17) shots gave her a slight relief.  “Now she’s \nfair.” \n Under cross-examination, Mr. Lewis admitted he remembered when the claimant \nfell in the bathroom and hurt her leg and strained, “her, I think it’s MCI or MCL.”  He also \nadmitted going with her to the doctors. (Tr.pp.14-15) \n On  re-direct, he  remembered  her  telling  the  doctors  she  had  slipped  in  the \nbathroom and had pain in  her leg and knee area. (Tr.p.16)  He stated now, if  we go to \nLittle  Rock, we  have  to  stop  more  than  usual  because  when  she  would  get  still  she \ncouldn’t walk.  He helped her from the car to the exam room.  If she walked by herself, \nshe would get shaky and “couldn’t stand.” (Tr.p. 17) \n The claimant was then called and testified she had worked for Walmart for twenty-\nfive (25) years and worked in different jobs.  She was working at CAP, a stocker, when \nshe  was  injured.    Her  job  was  to  place  freight  on  the  shelfs.  (Tr.pp.18-19)    She  was \nstocking groceries when she was injured.  She would sometimes lift over fifty (50) pounds. \n(Tr.p.20)  The cart that was involved was an upright metal cart with little blue baskets in \nit that could weigh anywhere from one hundred (100) pounds or above depending on how \nmany groceries the on-line person put on it.  She stated she was prescribed the cane she \nhad with her on the day of the hearing because she had balance issues.  (Tr.p.21) \n When the injury happened, “it was like a snap instant, and it was like, I don’t know \nthat  I  blinked  for  a  snap,  and  I  remember  I  thought  I  got  shifted,  it  happened  so fast.”  \n“When I got injured, I remembered a sharp pain.  And after that sharp pain, I thought it \n\nLEWIS – G902784 \n \n5 \n \nwould just go away, but it didn’t.”  So  when  I  went  and  sat  down,  I  took  a  fifteen  (15) \nminute break and I barely could get up.  She went on to provide that she felt the pain in \nher lower back and hip.  She thought she  would walk it off but couldn’t. (Tr.p.22)  She \ntalked  to  the personnel  lady and management  took  the  report on a  tablet more  like an \nipad.  Her shift had ended so she was told to go home and place an ice pack on it and \ncall if it got worse.  She called back to the store and was told that she had to report back \nto the store and they had to get the paperwork and stuff together and then took her to the \nSherwood Urgent Clinic. (Tr.p.23)  She made two (2) visits to the Sherwood Clinic and \nwas  placed  on  light-duty  restrictions.    Due  to  the  restrictions,  she  worked  as  a phone \noperator.  She then later returned to work and was told workers’ compensation had denied \nher  claim and  she  had  to  return to  her  regular  duty,  and  that  she knew her  limitations.  \nShe then returned to her regular job.  She had a real bad issue when walking and this \nwent on with her job till August 30\nth\n.  She thought that she was fifty-eight (58) at the time \nof  her  injury  and  was  now  sixty-two  (62).  (Tr.pp.24-25)    She  also  testified  she  had \nobtained a college degree in Early Childhood Development, and had performed volunteer \nwork with her degree but worked at Walmart for better pay.  It was her understanding her \nclaim was denied due to her old injuries.  She agreed she never had any major problem \nwith her back or hip in walking or standing, prior to the injury.  She went on to state the \ncart struck her on the left side.  She did not realize she had been spun around until she \nsaw the video of the injury. (Tr.pp.26-27) \n She stated she was told to go to her own doctor and went to Dr. Kevin Falwell, her \nfamily physician.  He sent her to a sports doctor who was the same one she went to when \nshe injured her knee after the slip and fall in the bathroom.  He sent her for an x-ray of \n\nLEWIS – G902784 \n \n6 \n \nher  hip  and  lumbar  area.  (Tr.p.28)    She  returned  to  him  for  the  x-ray  results  and  he \nreferred  her  to  a pain doctor.   She  then  returned  to her  family  doctor  and requested a \nreferral somewhere else and was sent to Dr. Burba. (Tr.p.29)  She felt Dr. Burba knew \nthe  most  about  her  and  her  balance  problems.    (Tr.p.30)    After  her  injury  in  April,  she \nworked until August of 2019.  She denied working since leaving Walmart. (Tr.pp.32-33)  \n Under  cross-examination,  the  video  was reviewed  and  it  appeared  that  the \nclaimant was stocking the packaged lunch meat isle with the video starting at 11:36:08 \n(Tr.p.36)  The video was restarted at 11:50:40 and was then jumped to 11:52:01 and the \nclaimant  stated  she  thought  the  blue  cart  in  the  video  was  the  cart  in  question. \n(Tr.pp.38-39)    She  agreed  the  video  showed  the  cart  striking  her  between  11:52  and \n11:52:21.      She  continued  working  in  the  area  until  11:55:48.    She  stated  she  could \nremember immediate pain and felt something pop. (Tr.pp.40-41)  It did not immediately \nimpact her ability to work, “even though I had pain I kept working because I was trying to \nget the freight out before it stayed out there too long.”  When it spun me around so fast, \nit was like I lost conscious or something for a second. (Tr.p.42)  She felt more pain when \nshe put weight on her leg while going to her break, and after sitting down limped more \nwhen she got back up. \n The video provided that the claimant left the view of the camera at 11:58:48 and \nreturned at 12:05, when she continued to stock.  The video showed her going through a \ndoorway to receiving at 12:05:30, and the claimant testified she had to go in a cooler to \nget out the freight which she needed to work with. (Tr.pp.43-44)  She came back into view \non the video at 12:07, and felt that at that time, she had not told anyone about her injury. \n(Tr.p.45)  She agreed she never reappeared on screen after 12:07:50-ish because she \n\nLEWIS – G902784 \n \n7 \n \nwent on break.  The more she walked, the more it hurt, and she figured she needed to \nreport it. (Tr.p.46) \n The claimant was then questioned about an earlier injury when she fell in a shower \nand was treated by Dr. Angel.  She denied falling in the shower but stated she slipped \nwhile getting out.  She denied hurting her back at the time.  She was questioned why Dr. \nAngel requested a MRI of her back, and the claimant responded that he didn’t request a \nMRI  of  her  back  at  that  time  but  only  requested  a  MRI  of  her  back  when  the  Walmart \ninjury  occurred.    She was  then  questioned about  the medical  record  of  April 16,  2018, \nexactly one year prior to being hit by the cart at Walmart, that requested an MRI of the \nlumbar spine and her leg.  She recalled an x-ray of her back and a MRI of her knee.  She \ndid not remember tenderness in her back.  She was also questioned about going to the \nSherwood Clinic in June of 2018 complaining of back pain.  She responded that she did \nnot recall the dates but did recall that it was for a sprained muscle and if she received a \nsteroid injection, it was for a sinus infection. (Tr.pp.48-49) \n She  was  also  questioned  about  seeing  a  physician’s  assistant  whose  report \nprovided her  left  hip  pain  began  gradually  overtime,  and  she  denied  the  statement. \n(Tr.p.50)   In regard to a statement to Dr. Burba, she stated she had been, “struck by a \ncart at work.”  She also agreed she continued to work at Walmart until August 30, 2019, \nwhen she was terminated.  She admitted receiving short-term disability benefits and then \nlater long-term disability benefits, which she was no longer drawing.  She also admitted \nbeing approved for social security disability benefits. (Tr.p.52)   She had to return a portion \nof the long-term disability payments when she was approved for social security disability. \n(Tr.p.53) \n\nLEWIS – G902784 \n \n8 \n \n On re-direct, the claimant testified that Walmart wanted over $20,000 back from \ntheir self-insured, long-term disability policy and she had to pay it back. (Tr.p.54)       \n The medical and documentary evidence presented herein has been reviewed in \nits entirety, including the introduced video at the times described in the testimony and the \nrelevant parts are discussed below.   \nThe  claimant  introduced  seventy-six  (76)  pages  of  medical  that  was  admitted \nwithout objection.  The respondents introduced thirty-five (35) pages of medical records \nthat  were  also  admitted  without  objection.  A  joint  synopsis  of  the  medical  records  was \nintroduced by  the  parties  to  assist  the  Commission.      A progress note  from  Dr. Jeffery \nAngel dated April 16, 2018, provided that the claimant presented for a follow-up for left \nknee pain.   The  claimant  had fallen  in  the  bathroom on  February 6,  2018,  twisting her \nknee.  Her pain developed suddenly, and she was treated with physical therapy. (Resp. \nEx. 1, p. 1) \nA  report  from  Amanda  Cowell,  APN,  of  Sherwood  Urgent  Care  dated  June  11, \n2018, provided the claimant presented with a headache and back pain. A steroid injection \nwas given along with a Z-pack. (Resp. Ex. 1, pp. 2-4)    \nThe  claimant  presented  to  Dr.  Falwell, her  family  practice  physician  on  May  7, \n2019,  with  a  complaint  of  lower  back  pain,  less  than  a  month  after  the  April  16,  2019, \nwork-related cart incident.  The report provided the claimant received an x-ray of the lower \nback  and  hip  which  appeared  normal.    The  claimant  received  steroids  and  muscle \nrelaxers. (Cl. Ex. 1, pp. 1-3)  The claimant returned to Dr. Angel on May 22, 2019.   An \nMRI provided for degenerative disc disease in regard to the back and the MRI of the femur \nwas  negative.  (Resp.  Ex.  1,  pp.  5-7)    The  claimant  returned  to  Dr.  Falwell  on  July  30, \n\nLEWIS – G902784 \n \n9 \n \n2019,  with a complaint of  head and sinus congestion and lower back pain.  The report \nprovided that the hip had a full range of motion, but with tenderness.  She did not want \ninjections but was scheduled for physical therapy.  (Resp. Ex. 1, pp. 8-10)  She returned \nto Dr. Falwell on August 19, 2019, with a complaint of low back pain and also described \nepisodes  of  right  upper  limb  numbness.  Physical  therapy  was  not  helping  and  she \nrequested a referral to neurology. (Cl. Ex. 1, pp. 4-6) \n A letter dated August 30, 2019, from Dr. Burba, who the claimant was referred to \nby Dr. Falwell, provided she, “was hit by a cart in the left hip and back and since then has \nhad  a  burning  sensation  in  the  hip  and  abdominal  area  that  radiates  into  the  legs  and \ntoes.”  The letter also mentioned numbness in the right arm and that her balance was off.  \nThe letter also referred to swelling in all the claimant’s joints. (Cl. Ex.1, pp.7-8) (Resp. Ex. \n1, pp.11-12)  An MRI dated September 26, 2019, of the left hip and pelvis, provided no \nsignificant left hip cartilage femoral stress reaction, fracture, or osteonecrosis.  There was \nmild blunting of the labrum.  Mild left trochanteric bursitis was noted without significant \ngluteal tendinopathy or a gluteal tendon tear.  Additionally mild bilateral gluteal tendinosis \nalong with mild gluteal tendinosis without a tear, was noted.  No abnormality was detected \nalong  the  sacral  plexus  and  proximal  sciatic  nerves.  (Cl.Ex.1,  p.9)  The  claimant  also \nreceived a fluoroscopically guided left hip injection  by Dr. William Henry on October 30, \n2019. (Cl. Ex.1, p.13) \n The claimant made four (4) visits to Kenneth Weaver, PAC, from October 11, 2019, \nthrough December 19, 2019.   During these visits, she received  fluoroscopically guided \ninjections  and  the  final  report  provided  there was  unspecified  generalized  left  hip  pain \n\nLEWIS – G902784 \n \n10 \n \nwith  a  stable  exam  and  no  evidence  of  pathology  during  the  physical  exam  or  other \nmodalities of evaluation. (Cl. Ex.1, pp.10-1 9)  (Resp. Ex. 1, pp.13-15)    \n A chart note from Dr. Burba dated March 3, 2020, provided the claimant had three \n(3) different sources of pain in her left leg: (1) Compression at the anterior superior iliac \nof the superficial femoral cutaneous nerve which had roots from the lumbosacral spine. \n(2)  Intertrochanteric bursitis demonstrated by the orthopedic surgeon on the MRI. (3)  A \nherniated disc and the root probably played a role as well. (Cl. Ex. 1, p. 20)  (Resp. Ex. \n1, p. 20) \n The claimant had a telehealth visit with Dr. Burba during the COVID pandemic on \nApril  22,  2020, and  later  on  May 19, 2020.  The  April  report  provided  there  was  \nmild  L4-5  foraminal  stenosis  and  L4  radiculitis  and  left  bursitis.    The  report  went  on  to \nprovide  that  several  different  pain  medications  were  recommended  but  the  claimant \ndeclined.  The claimant was set up with Dr. Schlesinger for epidural steroids.  The May \nreport  provided  that  a  pain  consult  with  Dr.  Roman,  who  will perform  epidurals,  was \narranged. (Cl. Ex.1, pp. 21-24) \n The claimant presented to Dr. Roman on June 16, 2020.  The report provided the \nclaimant maintained she suffered low back pain but there was no pain tenderness and \nher  muscle  tone  was  appropriate  and  symmetric.    He  opined  that  the  MRI  was  not \noverwhelming  and  did  not  indicate  surgery.   Dr. Roman’s final  diagnosis  was  lumbar \nradiculopathy, low back pain, lumbar disc disease, multilevel facet disease, and current \nlong-term use of medication. (Cl. Ex. 1, pp. 25-26) \n On June 26, 2020, the claimant had another telehealth visit with Dr. Burba.  Under \nimpression, the report provided most of her problems were the result of degenerative disc \n\nLEWIS – G902784 \n \n11 \n \ndisease,  made  worse  by  trauma  causing  sciatica.     This  probably  resulted  from \nlumbosacral plexitis due to the trauma of the cart hitting her while at work and related to \nher fibroid tumors. (Cl. Ex.1, pp. 27-28) \n The claimant returned to Dr. Roman on July 6, 2020, for a facet joint injection. (Cl. \nEx.1, pp. 29-30)  On July 29, 2020, he performed a rhizotomy at L3-4, L4-5, and L5-S1.  \nThe report went on to provide that the MRI showed mild to moderate loss of disc height \nwith  a  bulge at the L3-4 level  and L4-5 level.  The  symptoms were correlative with an \nL3-4 dermatome distribution which correlated with the EMG findings.  His final diagnosis \nwas  lumbar  radiculopathy,  low  back  pain,  lumbar  disc  disease,  lumbar  spondylosis, \nmultilevel facet disease, and chronic long-term use of medications. (Cl. Ex. 1, pp. 31-32) \n The  claimant  returned  to  Dr.  Burba  on  August  13,  2020,  who  opined  that  the \nchronic  pain  syndrome  was  due  to  trauma,  radiographic  evidence  of  intertrochanteric \nbursitis,  and  gluteal  tendinosis,  along  with  fibroid  tumors,  with  bilateral  tarsal  tunnel \nsyndrome and L-4 radiculitis on the left causing sciatica. (Cl. Ex. 1, pp. 33-34) \n The claimant returned to Dr. Roman three (3) times from August 24, 2020, through \nDecember 7, 2020, for transforaminal epidural injections and a trochanteric hip injection. \n(Cl.  Ex.1, pp.  35-46)    The  claimant  received  a  bone  scan  ordered  by  Dr.  Burba  on \nDecember 9, 2020, and the report provided for a normal whole-body scan. (Resp. Ex. 1, \np. 20)   The claimant then  had another telehealth visit with Dr. Burba on December 11, \n2020.  This  report  provided  that  the  claimant  suffered  from  chronic  pain  syndrome, \nintertrochanteric  bursitis,  tendinosis,  fibroid  tumors,  and  possible  demyelinating  poly \nneuropathy,  with  a  mononeuritis  multiple  distribution,  and  that  the  changes were  mild, \nwith lumbosacral radiculitis. (Cl. Ex 1, pp. 47-48) \n\nLEWIS – G902784 \n \n12 \n \n The claimant returned to Dr. Roman on December 21, 2020, January 9, 2021, and \nMarch 16, 2021.  She received a transforaminal epidural injection of the neural foramen \nat L5-S1  on  the  left  side on  December  21, 2020.   A  clinic  note  dated March  16,  2021, \nprovided the claimant suffered from left hip pain, greater trochanteric bursitis of the left \nhip, long-term medication use, lumbar spondylosis, lumbar disc bulges at L3-4, and L4-5 \nalong with low back pain. (Cl.Ex.1, pp. 49-53) (Resp. Ex. 1, p. 21) \n The  claimant  had  a  follow-up  visit  with  Dr.  Tucker  on  March  30,  2021,  and  an \nextensive lumbar work up did not lead to relief of the hip pain.  The injections provided \nsome  relief,  but  the  physical  therapy  was  unbearable.    On  April  6,  2021,  the  claimant \nfollowed up with Dr. Tucker and the report provided that the claimant obtained no relief \nfrom the intra-articular injection but that the greater trochanteric bursa injection provided \nfor a few days of relief. (Resp. Ex. 1, pp. 22-28)  \n The claimant again visited Dr. Burba on May 20, 2021.  The report provided the \nclaimant  had  chronic  pain  syndrome of  the  left  hip  and  back  secondary  to  trauma  as \ndescribed in the previous notes. The report also found the claimant very tender over the \nintertrochanteric  bursa.  Dr.  Burba  went  on  to  state  that  he  did  not  see  any definitive \nneurologic issue to treat. (Cl. Ex. 1, pp. 54-55) (Resp. Ex. 1, pp. 29-30) \n The claimant returned to Dr. Roman on June 15, 2021, and the report provided the \nclaimant was hit by a shopping cart and the MRI of the left hip showed no fracture, no hip \ndislocation, and no significant arthritis.  She had some disc disease and still complained \nof hip pain.  His final diagnosis was left hip pain, greater trochanteric bursitis of the left \nhip,  long-term  use  of medications,  lumbar  radiculopathy,  and  lumbar disc disease.  (Cl. \nEx. 1, p. 56) \n\nLEWIS – G902784 \n \n13 \n \n Another MRI of the left hip was obtained on July 2, 2021, due to the left hip pain, \nand it provided for mild to moderate osteoarthritis with a small physiological fluid in both \nhips and moderate chondral thinning at the hips. (Resp. Ex. 1, p. 31)  Dr. Tucker stated \non July 6, 2021, that the claimant reported absolutely no relief from the greater trochanter \nbursal injection or the physical therapy.  There were no signs of bursitis or inflammation \nof the greater trochanter area. (Resp. Ex.1, pp.32-35) \n The claimant had another telehealth visit with Dr. Burba on August 20, 2021.  The \nreport provided the claimant’s EMG revealed an early demyelinating motor and sensory \npolyneuropathy with a mononeuritis multiplex type distribution and chronic denervation at \nmultiple sites in the LS spine, possibly related to degenerative disc disease.  Her MRI of \nthe left femur was unremarkable.  He again mentioned her fibroids and opined she was \nunable to work due to her pain. (Cl. Ex. 1, pp. 57-58)  The claimant again returned to Dr. \nRoman on October 5, 2021, who provided the same diagnosis as previously stated and \nmentioned the opiate use of tramadol. (Cl. Ex. 1, p. 59)  The claimant continued to return \nto Dr. Burba with an office visit on October 5, 2021, and a return visit to Dr. Roman on \nNovember 24, 2021, for injections. (Cl. Ex. 1, p. 60) \n On  October  29,  2021,  Dr.  Burba  signed  a  document  which provided, “It is my \nopinion with a reasonable degree of medical certainty (51% or greater) that the injuries \nshe sustained while working for Walmart, when she was struck by an on-line grocery cart \non April 16, 2019, necessitates the medical treatment I am providing.”  (Cl. Ex. 1, p. 63) \n The  claimant  then  returned  to  Dr.  Roman  on  November  11,  2021,  for  another \nepidural injection.  The report provided for lumbar radiculopathy, lumbar disc disease at \n\nLEWIS – G902784 \n \n14 \n \nthe L3-L5, and lumbar spondylosis along with greater trochanteric bursitis of the left hip.  \n(Cl. Ex. 1, pp. 61-62) \n The claimant continued to follow-up with Dr. Burba on February 21, 2022. (Cl. Ex. \n1,  pp.  64-65)    The  report  provided  the  claimant  returned  with  tenderness  over  the  left \nintertrochanteric bursa with appreciable swelling. The report also stated that they would \nrepeat inflammatory markers to insure there was no underlying autoimmune process and \nthere would be continued pain control with Dr. Roman. \nIn regard to Dr. Roman, the claimant had follow-up visits on February 21, April 1, \nMay 25, August 30, April 29, 2022, and November 29, 2022.  The final diagnosis of record \nby Dr. Roman provided for lumbar radiculopathy of the left L5-S1, low back pain, lumbar \ndisc disease at L4-L5, and L5-S1, cervical disc disease, lumbar spondylosis, generalized \nosteoarthritis, and long-time use of medications including tramadol. (Cl. Ex. 1, pp. 66-67, \n68-76) \nIt was also noted that the last MRI of record was on March 17, 2022.  The report \nprovided there was mild left hip osteoarthritis with tearing at the anterior superior labrum \nwith  no  paralabral  cyst.  Additionally  there  was  mild  right  hip  osteoarthritis  and  right \ngreater  trochanteric  bursal  distension/bursitis  along  with  possible  fibroids.  (Cl. Ex. 1, \npp. 68-69)    \n The claimant also introduced the deposition of Dr. Burba taken on June 8, 2022, \nwhich  included  medical  records.    He  testified  he  was  board  certified  by  the  American \nBoard of  Psychiatry and  Neurology but  stated  that  it  was  really  Adult  Neurology and  a \nsub-certification of the American Board of Psychiatry and Neurology, and that he does no \npsychiatry, only adult neurology.  He went to medical school at Oklahoma University and \n\nLEWIS – G902784 \n \n15 \n \ngraduated in 1976.  He had seen the claimant a number of times and about a third of the \ntime, they were in person due to the fact that this was in the middle of the pandemic. (Cl. \nEx. 2, pp. 5-6)  He had quickly scanned the claimant’s chart prior to the deposition.  The \nlast  time  he  had  seen  the  claimant  was  February  21,  2022,  with  some  later  telephone \ncalls.  Dr.  Burba  provided nothing had changed about the claimant’s condition or her \ntreatment on the last February visit. (Cl. Ex. 1, pp. 8-9)   \nHe was questioned about the “To-Whom-It-May Concern” letter,  and  he  agreed \nthe letter had been drafted by the claimant’s attorney and he signed it.  It provided for an \nabnormal EMG/NCV and a positive Laesigue’s and also an MRI of the cervical spine.  He \nagreed  it  provided  with  a  reasonable  degree  of  medical  certainty  that  the  injuries  the \nclaimant sustained while working for the respondent and was struck by an online grocery \ncart on April 16, 2019, necessitated the medical treatment he had provided.  He went on \nto opine that the worst of her injuries was the unresolved intertrochanteric bursitis of the \nleft hip.  The MRI showed bursitis in that area, and it had not resolved over this long period \nof time.  Generally, bursitis would resolve but this one hadn’t. “Objectively, I can feel heat \nin  that  intertrochanteric  bursa  through  the  skin.    I  can  feel  fluctuation  or  sort  of  an \nedematous or swollen feeling there, and there’s crepitus in the joint when you move the \nleg around.  So it’s not just her complaining about it.” (Cl. Ex. 2, pp. 10-12)  He felt ninety \npercent  (90%)  of  her  problems  were  due  to  the  accident.    He  admitted  she  had some \ndegenerative  disc  disease  but  stated  everyone  suffered  from  that.   She  had  some \nlow-grade  neuropathy  and  a  few  disc  protrusions.  She  also  had  some  mild-grade \ntendinosis and sometimes this happened secondary to an injury, due to other joints and \nmuscles  compensating  for  the  area  that was  inflamed.  “The joint itself did not show \n\nLEWIS – G902784 \n \n16 \n \nrheumatoid arthritis or cancer or any of the other medical issues that we normally see in \nthis  age  group,  and  so  this  -  -  this  looks  like  a pure traumatic  injury  to  the  left hip  and \nprimarily in the trochanteric bursa.” (Cl. Ex. 2, pp.13-14)  Under further questioning, he \nadmitted he did not see the accident happen.  “I don’t know -- you know, in my mind, you \nknow, a cart bumping against a hip, you know, to cause this kind of thing, I just can’t \nconceive of -- if why this continues to go on, unless that cart was really moving or that \ncart was really heavy or -- or had a massive unexpected blow where she was unprotected.  \nYou  know,  there  must  have  been  a  lot  of  energy  transfer  to  cause  this degree  of \ninflammation in that joint.”  Dr. Burba agreed that he was operating on the assumption \nthat there was “a lot of energy transfer.” (Cl. Ex. 2, pp.18-19) \nUnder questioning by the claimant’s attorney, Dr. Burba agreed that a trauma could \ntrigger the problems that he was seeing with the claimant. (Cl. Ex. 2, p. 21) \nUnder  further  direct-examination by the respondent’s attorney, Dr. Burba was \nquestioned about the claimant being hit by a heavy cart and “it knocked her for a loop.”  \nHis response was “I don’t know that.  I don’t know if --  you  know,  if  the  was  wedged \nbetween something that kept her from moving, you know, if she, had like a crush injury; \nor if  -- you know, if she was in a very fragile position, like reaching and stretching on one \nfoot,  you  know,  and  leaving  her  unable  to  protect herself;  if  she  saw  it,  ahead  of time, \ncoming so she could take evasive action and got more a glancing blow than a direct hit.  \nAll of those things play a role, and I don’t know the answer to that question.”  (Cl. Ex. 2, \np. 21)  Dr. Burba was also questioned about the claimant’s other health issues.  He stated \nthat her polyneuropathy was unrelated to the accident. (Cl.Ex.2, p.33)  He was questioned \nif  his  findings  were  based  upon  the  history  that  he  was  given  about  the  accident.    He \n\nLEWIS – G902784 \n \n17 \n \nresponded that it was based upon the history and, “also the objective markers, the MRI \nscan, the EMG, and especially, the physical exam.”  (Cl. Ex. 2, p. 36) \nThe  respondents  exhibit  1  which  contained  the  medical  they  introduced  is \ndiscussed above.  The respondents also submitted a deposition taken on December 5, \n2019, of the claimant into the record without objection.  The claimant was fifty-nine (59) \nyears old at the time of the deposition with her birthday on November 3, 1960. (Resp. Ex. \n2,  p.7)  She worked on the cap team at the time of the accident at Walmart.  The cap \nteam worked in different areas displaying freight and climbing up and down ladders.  The \nclaimant  stated  she  was  working  grocery  at  the  time  of  the  accident.  (Resp. Ex. \n2,   pp.18-20)  She was bent over stocking dairy sandwich meat at the time of the accident.  \nShe would down stack the meet to a pallet and then down stack the meet to a “rocket \ncart.”  She was bent over at the waist stocking the meat and got hit by an “online grocery \ncart.”  The cart is metal with individual baskets and larger than the carts the customers \ngrab. (Resp. Ex. 2. pp. 27-29)  The cart hit her in the leg and she called it to the attention \nof the online order filler pushing the cart.  It hit her in the leg, thigh, and hip while she was \nbent over, hitting her more to the side.  She thought the person pushing the cart did not \nnotice he hit her, but when she got his attention, he stated he was sorry.  She sat there \nfor a minute and attempted to regroup because she was shocked.  She stated she felt a \nsharp pain or pop and then went to take her break and when she stood up from the break, \nshe had trouble getting up.  It was her hip and lower back.  She hurt in her hip and back \nwhile sitting during the break.  She then went and reported the accident to her personnel \nmanager. (Resp. Ex. 2, pp. 31-35) \n\nLEWIS – G902784 \n \n18 \n \nShe went home after work that afternoon and when the pain worsened, she called \nwork and was told to return and was taken to Sherwood Urgent Care.  At Urgent Care, \nshe was seen by Amanda Crowell, a nurse practitioner, who ordered an x-ray but did not \nprovide  any  medication.    She  was  not  taken  off  work  and  returned  to  work  light-duty.  \n(Resp. Ex. 2, pp. 36-39)  The claimant never returned to Sherwood Urgent Care after the \nsecond  visit  and  then  went  to  her  family  physician,  Dr.  Falwell,  and  continued  to  have \nproblems.  He recommended an orthopedic physician, Dr. Angel.  She also admitted to \nreceiving four (4) to six (6) weeks of physical therapy. (Resp. Ex 2, pp. 41-42)  Dr. Angel \nreferred her to a pain clinic but she didn’t get to go, so she returned to her family doctor \nwho referred her to an orthopedic doctor in Little Rock.  She also remembered going to a \n“nerve” doctor in Little Rock who performed a nerve conduction study and she thought \nthe  physician  was  Dr.  Burba.    Dr.  Burba  then  sent  her  to  a  different  orthopedist,  Dr. \nWeaver, who performed a hip injection.  The injection relieved some of the pressure and \npain  but  did  not  solve  the  problem.    She  would  receive  a  few  hours  of  relief from  the \ninjections and some improvement the next day. (Resp. Ex. 2, pp. 43-46) \nThe  claimant  testified  she  was  having  pain  in  her  neck,  lower  back,  and her \nbuttocks on her left side at the time of the deposition.  “And my whole -- and my hip, and \nmy thigh part of my leg, my whole left leg down to my knee and my toes, if I can recall all \nof it.” (Resp. Ex 2, p.50)  She admitted being able to  perform house cleaning, cooking, \nlaundry,  and  driving.  (Resp.  Ex.  2,  p.52)      She  could not  recall  having  trouble with  her \nneck prior to April 16\nth\n, but admitted seeing a doctor for her back.  She stated she had a \nfa ll as a teenager.  She had never seen a doctor for her left hip, but had seen a doctor for \n\nLEWIS – G902784 \n \n19 \n \nher left knee in 2018 when she slipped and fell in the bathroom, getting ready for work \nand spraining her MCL. (Resp. Ex. 2, pp. 53-54) \nThe respondent also admitted a DVD of the actual incident involving the claimant \nbeing hit by the cart that was recorded on in store cameras.  It was admitted as Exhibit 3 \nwithout  objection.    The  video  was  reviewed  multiple  times  from  the  claimant’s  first \nappearance on the video at approximately 11:35:38 until approximately 12:07 when the \nclaimant  went  for  break.    The  claimant  initially  appeared  in  the  video  at  11:35:38, \napparently walking out of a door to the cart that she was going to use stocking the shelves.  \nShe started stocking at approximately 11:36:20, making multiple trips between her cart \nand the store display case.  At 11:37:10, she stood on one leg and even crawled on top \nof the front ledge of the display case, getting on both knees on the ledge, to place items \nwhere she had trouble reaching.  Although the video is somewhat jerky due to the method \nof filming or storage, she appeared to ambulate well with a fluid gait and solid stance.  At \n11:52:20,  the  cart  in  question  was  pulled  past  the  claimant  and  the  rear  of  the  cart \nfishtailed and struck the claimant in what appeared to be a light and glancing blow to the \nclaimant’s left side.  The claimant  continued  to  work  but after multiple  viewings,  it  was \nobserved that her gait and stance changed slightly after the incident.  \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving, by a preponderance of the evidence, that she is entitled to compensation benefits \nfor the injury to her left hip/leg and low back under the Arkansas Workers’ Compensation \nLaw.    In  determining  whether  the  claimant  has  sustained  her  burden  of  proof,  the \nCommission shall weigh the evidence impartially, without giving the benefit of the doubt \n\nLEWIS – G902784 \n \n20 \n \nto either party.  Ark. Code Ann. § 11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, \n768 S.W. 2d 521 (1989).  Further, the Commission has the duty to translate evidence on \nall issues before it into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 \nArk. App. 344, 925 S.W.2d 179 (1996). \nFrom the medical reports submitted by both the claimant and the respondents,  it \nappears that the claimant clearly suffered from various conditions in regard to her lower \nback and left hip/leg prior to the accident, plus additional issues that many people her age \nsuffer.  A pre-existing disease or infirmity does not disqualify a claim if the employment \naggravated,  accelerated,  or  combined  with  the  disease  or  infirmity  to  produce  the \ndisability for which compensation is sought.  See, Nashville Livestock Commission v. Cox, \n302 Ark. 69, 787 S.W.2d 864 (1990);  Conway Convalescent Center v. Murphee, 266 Ark. \n985,  585  S.W.2d  462  (Ark.  App.  1979);   St.  Vincent  Medical  Center  v.  Brown,  53  Ark. \nApp. 30, 917 S.W2d 550 (1996).  The employer takes the employee as it finds him or her.  \nMurphee, supra.  \nThe claimant in a work-related incident, was hit a glancing and light blow by a cart.  \nShe went home after finishing her shift, but testified she was in pain and on the same day \nof the incident, contacted the respondent while she was at home, and was instructed to \nreturn  to  the  workplace  to  fill  out  paperwork,  and  was  then  taken  to  Sherwood  Urgent \nCare.  The claimant was treated there and later received multiple MRI’s that discovered \na variety of health issues which included degenerative disc disease, lumbar spondylosis, \nmultilevel facet disease, fibroids, arthritis, and bursitis.  She also received treatment by \nmultiple  physicians  but  appeared  to  be  primarily  treated  by  Dr.  Roman  who  provided \nmultiple epidural injections and a rhizotomy, and Dr. Burba. \n\nLEWIS – G902784 \n \n21 \n \nA  compensable  injury  must  be  established  by  medical  evidence  supported  by \nobjective findings and medical opinions addressing compensability and must be stated \nwithin  a  degree  of  medical  certainty. Smith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72 \nS.W.3d 560 (2002).  Speculation and conjecture cannot substitute for credible evidence.  \nLiaromatis v. Baxter County Regional Hospital, 95 Ark. App. 296, 236 S.W.3d 524 (2006).  \nMore  specifically,  to  prove  a  compensable  injury,  the  claimant  must  establish,  by  a \npreponderance  of  the  evidence:  (1)  an  injury  arising  out  of  and  in  the  course of \nemployment;  (2)  that  the  injury  caused  internal  or  external  harm  to  the  body  which \nrequired  medical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence \nsupported by objective findings, as defined in Ark. Code Ann. §11-9-102 (16) establishing \nthe injury and (4) that the injury was caused by a specific incident and identifiable by time \nand  place  of  occurrence.    If  the  claimant  fails  to  establish  any  of  the  requirements  for \nestablishing  the  compensability  of  the  claim,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  \nDr. Burba signed a document stating, “It is my opinion with a reasonable degree \nof  medical  certainty  (51%  or  greater)  that  the  injuries  she  sustained  while  working  for \nWalmart, when she was struck by an online grocery cart on April 16, 2019, necessitates \nthe medical treatment I am providing.”  This led  to  his  deposition and  in  explaining  his \nthoughts in regard to the document he signed, he stated his opinion was based upon the \nhistory and “also the objective markers,  the  MRI  scan,  the  EMG,  and  especially,  the \nphysical exam.”  In regard to the actual severity of the cart bump he stated, “I don’t know \nthat.  I don’t know if -- you know, if  she was wedged between something that kept her \nfrom moving, you know, if she, had like a crush injury; or if -- you know, if she was in a \n\nLEWIS – G902784 \n \n22 \n \nvery fragile position, like reaching and stretching on one foot, you know, and leaving her \nunable to protect herself; if she saw it, ahead of time, coming so she could take evasive \naction and got more a glancing blow than a direct hit.  All of those things play a role, and \nI don’t know the answer to that question.”  He  opined  that  trauma  could  cause  the \nproblems that he was seeing in the claimant. \nHere, the video of the incident was viewed multiple times and showed the claimant \nimmediately before and after the incident.  The claimant suffered what clearly appeared \nto be a light glancing blow to the left side of her body.  After multiple reviews of the video, \nit is determined that it shows the fluidity of the claimant’s gait along with her stance and \nher ambulation changed slightly after the incident and that this corresponds to the opinion \nissued by Dr. Burba, as well as the testimony by the claimant.  Dr. Burba issued an opinion \nthat was backed up by his deposition as to the cause of the claimant’s problems and the \nCommission has the authority to accept or reject medical opinions.  Williams v. Ark. Dept. \nof Community Correction, 2016 Ark. App. 427, 502 S.W. 3d 530 (2016) \n  Consequently, it is found that the claimant has satisfied the above requirements \nand has proven, by a preponderance of the evidence, she suffered a work-related injury \nto  her  left  hip/leg  and  low  back.    In  regard  to  medical  treatment,  the  employer  shall \npromptly provide for an injured employee such medical treatment as may be reasonable \nin  connection  with  the  injury  received  by  the  employee.  Ark.  Code  Ann.  § 11-9-508(a).  \nThe  employee  has  the  burden  of  proving,  by  a  preponderance  of  the evidence,  that \nmedical treatment is reasonably necessary.  Stone v. Dollar General Stores, 91 Ark. App. \n260, 209 S.W.3d 455 (2005)  What constitutes reasonably necessary medical treatment \nis a question of fact for the Commission.  Wright Contracting Co. v. Randall, 12 Ark. App. \n\nLEWIS – G902784 \n \n23 \n \n358, 676 A.W.2d 750 (1984)  Here the claimant has proven, by a preponderance of the \nevidence, that she suffered a compensable work-related injury to her left hip/leg and low \nback and it is found that she is entitled to reasonable and necessary treatment regarding \nthe injury plus the payment of reasonable and necessary out-of-pocket medical expenses. \nBased upon the available evidence, it is found that the claimant has satisfied the \nburden of proof to show she suffered a compensable work-related injury to her left hip/leg \nand  low  back  on  April  16,  2019,  and  is  entitled  to reasonable  and  necessary  medical \ntreatment  plus  the  payment  of  any  reasonable  and  necessary  out-of-pocket  medical \nexpenses paid by the claimant. \nThe claimant and her attorney are entitled to the appropriate legal fees as spelled \nout in Ark. Code Ann. §11-9-715.  This Award shall bear interest at the legal rate pursuant \nto Arkansas Code Annotated §11-9-809.  If not already paid, the respondents are ordered \nto pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n \n  \n \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G 902784 BETTY A. LEWIS, EMPLOYEE CLAIMANT v. WALMART ASSOCIATES, INC., EMPLOYER RESPONDENT #1 WALMART CLAIMS SERVICES, CARRIER/TPA RESPONDENT #1 DEATH & PERMANENT DISABILIITY TRUST FUND RESPONDENT #2 OPINION FILED FEBRUARY 28, 2023 Hearing before Administr...","fetched_at":"2026-05-19T23:10:49.811Z","links":{"html":"/opinions/alj-G902784-2023-02-28","pdf":"https://labor.arkansas.gov/wp-content/uploads//LEWIS_BETTY_G902784_20230228.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}