{"id":"alj-H000742-2023-05-11","awcc_number":"H000742","decision_date":"2023-05-11","opinion_type":"alj","claimant_name":"Daniel Kinne","employer_name":"Central States Mfg., Inc","title":"KINNE VS. CENTRAL STATES MFG., INC. AWCC# H000742 MAY 11, 2023","outcome":"granted","outcome_keywords":["granted:7"],"injury_keywords":["neck","back","lumbar","cervical","strain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//KINNE_DANIEL_H000742_20230511.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KINNE_DANIEL_H000742_20230511.pdf","text_length":23816,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H000742 \n \nDANIEL R. KINNE, Employee                                                                         CLAIMANT \n \nCENTRAL STATES MFG., INC., Employer                                              RESPONDENT                         \n \nSENTRY INSURANCE COMPANY, Carrier                                             RESPONDENT                        \n \n \n OPINION FILED MAY 11, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On April 12, 2023, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on  February 22, 2023 and a pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #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 the \nwithin claim. \n 2.   The claimant sustained a compensable injury to his neck and back on October \n6, 2019. \n 3.      The  claimant  was  earning  sufficient  wages  to  entitle  him  to  the  maximum \ncompensation  rates  of  $695.00  for  total  disability  benefits  and  $521.00 for  permanent \n\nKinne – H000742 \n \n2 \n \npartial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Claimant’s entitlement to additional medical treatment in the form of surgery  \non his back as recommended by Dr. Blankenship. \n2.    Temporary total disability benefits from December 8, 2021 through August 15,  \n2022. \n 3.      Attorney  fee;  including  a fee  on temporary  total  disability  benefits  paid  as  a \nresult of the neck surgery performed by Dr. Blankenship. \n At  the  time  of  the  hearing  claimant  indicated  that  he  is  no  longer  requesting \npayment  of  any  past  temporary  total  disability  benefits.    Claimant  also  indicated  that  if \nsurgery  for  his  lumbar  spine  is  approved  and  he  becomes  entitled  to  temporary  total \ndisability benefits that an attorney fee should be awarded. \n The claimant contends he is entitled to surgery for his back as recommended by \nDr. James Blankenship.  Claimant contends his counsel is entitled to an attorney fee on \nany previously paid temporary total disability benefits paid as a result of the neck surgery \nperformed by Dr. Blankenship.  Claimant reserves all other issues. \n The  respondents  contend  that  it  is not  liable  for the  treatment  recommended  by \nDr. Blankenship or a controverted attorney fee on  temporary total disability benefits paid \nas a result of the neck surgery.\n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n\nKinne – H000742 \n \n3 \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non February  22,  2023  and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted as fact. \n 2.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to additional medical treatment in the form of surgery to his low back \nas recommended by Dr. Blankenship. \n 3.   Claimant’s attorney is entitled to an attorney fee on temporary total disability \nbenefits previously paid to claimant as a result of his cervical surgery. \n \n FACTUAL BACKGROUND \n Claimant is a 50-year-old man who began working for respondent as a long-haul \ntruck driver in May 2016 and on October 6, 2019, he suffered an admittedly compensable \ninjury to his neck and low back.  Claimant testified that on that date he was walking on an \nuneven load, putting a tarp over the load, when he slipped and fell due to rain that was \nfalling.   \n  And when I slipped and fell, my foot got hung up in a pallet \n  and I fell to the side on the uneven surface and hit the side \n  of the trailer and was hanging upside down until a forklift \n  driver moments later came by and helped me get my foot \n  loose and helped me pull up to get me loose from the load. \n \n \n After  the  accident,  claimant  initially  came  under  the  care  of  Dr.  Berestnev  who \ndiagnosed claimant with a cervical and lumbar strain.  He treated claimant with injections \nof DepoMedrol and physical therapy.  When claimant’s condition did not improve he filed \n\nKinne – H000742 \n \n4 \n \nfor and received a change of physician to Dr. Blankenship, neurosurgeon.   Dr. \nBlankenship referred claimant to Dr. Cannon for a cervical epidural steroid injection \nand a possible lumbar epidural steroid injection.   \n In  his  report  of  December  10, 2020, Dr. Blankenship noted that claimant’s neck \npain was hurting him more than his back pain and he recommended cervical surgery: \n   \n  At present he feels like his neck is  hurting him worse \n  than his lower back.  He has kyphotic angulation at \n  C4-C5 with slight retrolisthesis at C4-C5.  This signi- \n  ficantly exacerbates an extension and completely \n  reduces in flexion which would be indicative of gross \n  segmental instability at this level.  I have offered an \n  anterior cervical arthrodesis and fusion at C4-C5. \n \n \n Initially, respondent denied this surgery and claimant requested a hearing.  Prior \nto  the  hearing,  respondent  accepted  liability  for  the  cervical  surgery.    (This  will  be \ndiscussed in greater detail later in this opinion.)  Dr. Blankenship performed the cervical \nsurgery on October 6, 2021, and according to Dr. Blankenship’s reports the surgery was \nsuccessful.   \n Since the cervical surgery, claimant has continued to complain of low back pain.  \nIn his report of December 2, 2021, Dr. Blankenship indicated that claimant did not want \nto consider surgery at that time but instead wanted to return to work. \n  He has marked facet arthropathy at L4-L5.  At L5-S1 \n  on his MRI from 2020, he does have marked facet \n  arthropathy.  Right now he does not feel like it is time  \nto look at surgery for his lower back.  He wants to get \n  back to work.   \n \n \n Claimant’s low back pain continued and Dr. Blankenship ordered a new lumbar \n\nKinne – H000742 \n \n5 \n \nMRI scan and in his report of June 23, 2022, he stated: \n  He had lower back pain when he initially saw us but now \n  his lower back pain has gotten significantly worse and he \n  has posterolateral leg pain, right much more significant \n  than the left.  The patient did physical therapy for his \n  lower back when he did his therapy for his neck.  His \n  plain radiographs demonstrate marked disc space \n  settling at the lumbosacrum.  He has retrolisthesis at \n  L3-L4 and L4-L5 in extension.  Both reduce in flexion. \n  His MRI demonstrates right-greater-than-left foraminal \n  stenosis at the lumbosacrum with severe facet arthro- \n  pathy.  He has significant facet arthropathy with mild \n  bilateral recess stenosis at L4-L5 and has an extreme \n  lateral disc herniation on the right-hand side at L3-L4. \n \n \n In  that  same  report  Dr.  Blankenship  stated  that  he  discussed  with  surgery  on \nclaimant’s lumbar spine but before proceeding he would recommend one last aggressive \nconservative  treatment  of  a  lumbar  epidural  steroid  injection  by  Dr.  Cannon  and  an \naggressive physical therapy program.   \n In his report of August 4, 2022, Dr. Blankenship indicated that the physical therapy \nhad aggravated claimant’s low back pain and stated that medication had provided minimal \nrelief.  He recommended a multilevel arthrodesis at L3-4, L4-5, and L5-S1.   \n Respondent  has  denied  the  surgery  recommended  by  Dr.  Blankenship  on \nclaimant’s lumbar spine.  As a result, claimant has filed this claim contending that he is \nentitled to the surgery recommended by Dr. Blankenship. \n \nADJUDICATION \n Claimant contends that he is entitled to additional medical treatment in the form of \nsurgery  to  his  lumbar  spine  as  recommended  by  Dr.  Blankenship.    Claimant  has  the \n\nKinne – H000742 \n \n6 \n \nburden  of  proving  by  a  preponderance  of  the  evidence  that  medical  treatment  is \nreasonable and necessary.  Stone v. Dollar General Stores, 91 Ark. App. 260, 209 S.W. \n3d 445 (2005).  What constitutes reasonably necessary medical treatment is a question \nof fact for the Commission.  Wright Contracting Company v. Randall, 12 Ark. App. 358, \n676 S.W. 2d 750 (1984).   \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has met his burden of proof.   \n Initially, I note that at his deposition claimant testified that he did not have any prior \nlow  back  complaints  before  the  accident  on  October  6,  2019.    However,  the  medical \nevidence indicates that claimant sought medical treatment for low back complaints from \na nurse practitioner on November 18, 2015 and was diagnosed with thoracolumbar back \npain.    The  report  also  indicated  that  claimant  desired  to  follow  up  with  neurology with \nregards to any imaging.  There is no indication that any imaging or any follow-up treatment \nwas received at that time.   \n Claimant  again  complained  of  lower  back  pain  to  a  nurse  practitioner  on \nSeptember 9, 2016.  Claimant gave a history of lower back pain for two to three months \nwhich had begun while driving a truck long distance.  Claimant indicated that he had to \nstop driving and get out to walk around in order to relieve the pain.  The report also notes \nthat claimant tried a TENS unit one time at home with some relief.   \n I note that claimant is not required to prove that his compensable injury is the major \ncause of the need for medical treatment. When the claimant has suffered a specific injury \nand  is  only  seeking  medical  benefits  and  temporary  total  disability,  the  major  cause \nanalysis is not applicable and the claimant need only show that the compensable injury \n\nKinne – H000742 \n \n7 \n \nwas a factor in the need for additional medical treatment.  Williams v. L & W Janitorial, \nInc.,  85  Ark.  App.  1,  145  S.W.  3d  383  (2004).    Here,  respondent  has  stipulated  that \nclaimant suffered a compensable injury to his low back on October 6, 2019.  There is no \nindication that  claimant sought any medical treatment for his low back complaints after \nSeptember  9,  2016,  until  after  his  admittedly  compensable  injury  on  October  6,  2019.  \nDuring that period of time the claimant performed his job duties for the respondent without \nany  apparent  difficulty.  Based  upon  the  evidence  presented,  I  find  that  claimant  has \nproven that his compensable injury is a factor in his need for medical treatment. \n I also find that Dr. Blankenship’s opinion is credible and entitled to great weight.  \nDr. Blankenship has been claimant’s authorized  treating  physician  and  has  previously \nperformed surgery on claimant’s cervical spine.  I do note that respondent previously had \nclaimant undergo an IME by Dr. Frank Tomecek on May 12, 2021.  While Dr. Tomecek \nagreed that claimant was in need of surgical treatment on his cervical spine, he was of \nthe opinion that surgery on the lumbar spine was not indicated.  I find that the opinion of \nDr. Blankenship is entitled to greater weight.  First, Dr. Blankenship has treated claimant \nfor an extended period of time and that treatment included cervical surgery.  On the other \nhand, Dr. Tomecek evaluated the claimant on only one occasion.  More importantly, Dr. \nBlankenship’s most recent recommendation for lumbar spine surgery is based in part on \na new MRI scan that was performed on September 3, 2021.  Dr. Tomecek did not have \nthe benefit of that MRI scan at the time of his opinion. \n Accordingly,  based  upon  the  evidence  presented  as  well  as  the  opinion  of  Dr. \nBlankenship, I find that claimant has met his burden of proving by a preponderance of the \nevidence  that  the  recommended  surgery  on  his  lumbar  spine  is  reasonable  and \n\nKinne – H000742 \n \n8 \n \nnecessary medical treatment for his compensable injury. \n The next issue for consideration involves claimant’s request for an attorney fee on \ntemporary total disability benefits previously paid as a result of claimant’s cervical spine \ninjury. \n Dr. Blankenship recommended that claimant undergo a cervical spine surgery in \nhis report of December 10, 2020.  Respondent did not accept liability for that surgery and \nas  a  result  claimant  filed  a  pre-hearing  questionnaire  on  or  about  January 26,  2021, \ncontending  that  he  was  entitled  to  the  cervical  spine  surgery  recommended  by  Dr. \nBlankenship.  A pre-hearing conference on that claim was conducted on March 10, 2021.  \nIn  response  to  the  pre-hearing  conference,  respondent  completed  a  pre-hearing \nquestionnaire dated March 8, 2021, with the following contention: \n  Respondents maintain that the surgical recommendation \n  by Dr. Blankenship is not reasonable, necessary or \n  causally related to the events of 10/06/19. \n \n \n I do note that in the pre-hearing questionnaire respondent did indicate that it might \nrequest a possible IME or second opinion evaluation report.   Following the pre-hearing \nconference a pre-hearing order was filed.  That pre-hearing order states the following with \nregard to respondent’s contentions: \n  The respondents contend that the surgical recommendation \n  by Dr. Blankenship is not reasonable, necessary or causally \n  related to the events of October 6, 2019. \n \n \n A hearing on claimant’s claim was scheduled for May 26, 2021.  Prior to that \nhearing, respondent had claimant undergo an IME by Dr. Tomecek who authored a report \ndated May 12, 2021, agreeing that claimant was in need of surgery on his cervical spine.  \n\nKinne – H000742 \n \n9 \n \nIn an e-mail dated May 20, 2021 to this administrative law judge from Attorney Parrish, it \nwas stated: \n  Here is the IME report.  I have a message in to my client \n  to find out how they want to proceed.  Respondent will \n  rely on this report if the hearing goes forward. \n \n \n On May 25, 2021, one day before the scheduled hearing, Attorney Parrish sent in \nthe following e-mail: \n  Based on the IME doctor’s opinion, my client is agreeing \n  to pay for the cervical spine surgery. \n \n \n Claimant  eventually  underwent  the  cervical  spine  surgery  and  was  off  work  for \napproximately eight weeks for which respondent paid claimant temporary total disability \nbenefits.  However, respondent did not pay claimant’s attorney a fee on those temporary \ntotal  disability  benefits.   Claimant’s attorney contends that she is entitled to a fee on \npayment of those temporary total disability benefits. \n First, I find that respondent controverted claimant’s entitlement to the cervical spine \nsurgery.  The respondent in its brief to the Commission is correct in noting that the failure \nof  the  employer  to  pay  compensation  benefits  does  not,  in  and  of  itself,  amount  to \ncontroversion  when  the  carrier  accepts  an  injury  as  compensable  and  is  attempting  to \ndetermine  the  extent  of  disability  or  is  making  a  reasonable  attempt  to  investigate.  \nOsborne v. Bekaert Corporation, 97 Ark. App. 147, 245 S.W. 3d 185 (2006); Hamrick v. \nThe Colsen Company, 271 Ark. 740, 610 S.W. 2d 281 (1981).   \n As previously noted, Dr. Blankenship recommended that claimant undergo surgery \non  his  cervical  spine  on  December  10,  2020.    Respondent  did  not  indicate  that  it  was \n\nKinne – H000742 \n \n10 \n \nattempting to investigate claimant’s need for surgery at that time.  Instead, almost a month \nlater  claimant  requested  a  hearing  on  his  entitlement  to  cervical  spine surgery  by  Dr. \nBlankenship.    In  response  to  that  request,  respondent  in  its  pre-hearing  questionnaire \nspecifically contended: \n  Respondents maintain that the surgical recommendation \n  by Dr. Blankenship is not reasonable, necessary or \n  causally related to the events of 10/06/19. \n \n \n While  respondent  did  indicate  that  it  was  possible  it  would  pursue  an  IME  or  a \nsecond  opinion  report,  respondent did  not  indicate  that  it  was  simply  in  the  process of \ninvestigating claimant’s need for surgical treatment.  In fact, it was not until the day before \nthe  scheduled  hearing  that  respondent  agreed  to  pay  for  claimant’s  cervical  spine \nsurgery.    This  was  May  25,  2021,  more  than  five  months  after  Dr.  Blankenship’s \nrecommendation.  Based upon these facts, I find that respondent controverted claimant’s \nentitlement to the cervical spine surgery recommended by Dr. Blankenship.   \n Respondent also indicates that nowhere in the pre-hearing order nor in claimant’s \npre-hearing  questionnaire  was  temporary  total  disability  benefits  or  an  attorney  fee \nmentioned.  That is a correct statement.  At the time claimant requested a hearing on his \nentitlement to cervical surgery, he was continuing to work for the respondent and was not \nentitled to temporary total disability benefits.  Claimant did not begin missing work until \nrespondent  accepted  the  cervical  spine  surgery  and  claimant  actually  underwent that \nsurgery  and  was  taken  off  work  by  Dr.  Blankenship.    A  request  for  temporary  total \ndisability  benefits  at  the  time  of  the  original  pre-hearing  conference  would  have  been \npremature since claimant was not suffering a total incapacity to earn wages. \n\nKinne – H000742 \n \n11 \n \n Respondent also notes it did not deny or resist claimant’s entitlement to temporary \ntotal disability benefits once he stopped working for the cervical spine surgery.  While that \nis correct, it ignores the fact that respondent initially denied claimant’s entitlement to the \ncervical  spine  surgery  which  resulted  in  his  entitlement  to  temporary  total  disability \nbenefits. \n Finally, respondent contends that because there was no “award” of temporary total \ndisability benefits in this case, an attorney fee is not appropriate pursuant to A.C.A. §11-\n9-704.  However, as noted by the respondent in its brief, the Workers’ Compensation \nCommission and more importantly the Arkansas Court of Appeals have found that under \nsimilar circumstances an attorney fee is appropriate. Walmart Stores, Inc. v. Brown, 73 \nArk.  App.  174,  40  S.W.  3\nrd\n  835  (2001).      In Brown,  the  respondent  initially  accepted  a \nclaim and paid some compensation benefits.  However, at a pre-hearing conference the \nemployer controverted claimant’s entitlement to temporary partial disability benefits and \na hearing was scheduled.  Approximately one month before the scheduled hearing  the \nemployer  indicated  that  it  would  accept  the  temporary  partial  disability  and  pay \nappropriate benefits, but refused to pay an attorney fee on the temporary partial disability \nbenefits.  The Court of Appeals affirmed the Commission’s decision to award an attorney \nfee.  In doing so, the Court stated: \n  \n  The Commission interpreted the requirements of  \n  Section 11-9-715(a)(2)(B)(ii) to be that where an \n  employer controverts an injured employee’s entitle- \n  ment to certain benefits, but later accepts liability \n  prior to a hearing on the merits, the employee’s \n  attorney may still request a hearing for an attorney’s \n  fee on those controverted benefits.  The Commission \n  found that when there is no dispute that the employer \n\nKinne – H000742 \n \n12 \n \n  controverted benefits but then paid the benefits on \n  which an attorney fee is sought that the employee has \n  established an award of those benefits for purposes of \n  the employee’s attorney seeking an attorney’s fee  \n  under Ark. Code Ann. Section 11-9-715(a)(2)(B)(ii). \n  The Commission found no requirement in Section \n  11-9-715(a)(2)(B)(ii) requiring that an award of \n  controverted benefits must precede the employer’s \n  payment of benefits for the claimant’s attorney to \n  be entitled to a fee.  We agree and hold that the \n  Commission’s s findings are supported by substan- \n  tial evidence. \n \n \n The  Court  went  on  to  state  that  it  had  long  been  recognized  that  making  an \nemployer  liable  for  an  attorney  fee  serves  an  legitimate  social  purpose  such  as \ndiscouraging oppressive delay in recognition of liability, deterring arbitrary or capricious \ndenial of claims, and ensuring the ability of claimant’s to obtain adequate and competent \nlegal representation.  If the fundamental purpose of an attorney fee is to be achieved, it \nmust be considered that the real object is to place the burden of litigation expenses upon \nthe party which made it necessary.  Cleek v. Great Southern Metals, 335 Ark. 342, 981 \nS.W.  2d  529  (1998).    The  Court  went  on  to  note  that  if  the  claimant  in Brown  had  not \nemployed counsel to assist her, it was reasonable to conclude that her claim for temporary \npartial  disability  benefits  would  not  have  been  properly  presented  and  protected.  \nLikewise, in this case, if claimant had not employed counsel to assist him in approval of \nthe cervical spine surgery, it is reasonable to conclude that he would have never been \nentitled to temporary total disability benefits. \n Based upon the decision in Brown, I find that claimant’s attorney is entitled to an \nattorney fee on temporary total disability benefits which were paid as a result of claimant’s \ncervical spine surgery. \n\nKinne – H000742 \n \n13 \n \n While respondent contends that the decision in Brown is misplaced and contrary \nto the plain language of the statute, this administrative law judge is without authority to \ndisregard  or  ignore  prior  rulings  of  the  Arkansas  Court  of  Appeals  and  the  Full \nCommission. \n The final issue for consideration involves claimant’s attorney’s contention that she \nis entitled to a fee on any temporary total disability benefits which would arise out of the \nclaimant’s lumbar spine surgery which has been approved in this opinion.  Given the prior \ncontroversy  over  the  attorney  fee  on  temporary  total  disability  benefits  resulting  from \nclaimant’s cervical spine injury, this claim is understandable.  However, as of the date of \nthe hearing, claimant had not undergone the lumbar spine surgery and at this point is not \nentitled  to  temporary  total  disability  benefits.    However,  should  claimant  undergo  the \nlumbar spine surgery and become entitled to temporary total disability benefits, claimant’s \nattorney would be entitled to an attorney fee on payment of those temporary total disability \nbenefits. \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe is entitled to lumbar spine surgery as recommended by Dr. Blankenship.  Claimant’s \nattorney is entitled to an attorney fee on temporary total disability benefits paid to claimant \nas a result of his cervical spine surgery.   \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $568.45. \n  \n\nKinne – H000742 \n \n14 \n \nIT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H000742 DANIEL R. KINNE, Employee CLAIMANT CENTRAL STATES MFG., INC., Employer RESPONDENT SENTRY INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED MAY 11, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Ar...","fetched_at":"2026-05-19T23:07:32.601Z","links":{"html":"/opinions/alj-H000742-2023-05-11","pdf":"https://labor.arkansas.gov/wp-content/uploads//KINNE_DANIEL_H000742_20230511.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}