{"id":"alj-H003073-2023-11-22","awcc_number":"H003073","decision_date":"2023-11-22","opinion_type":"alj","claimant_name":"Kenneth Brewton","employer_name":"May Avenue Plumbing, Inc","title":"BREWTON VS. MAY AVENUE PLUMBING, INC. AWCC# H003073 NOVEMBER 22, 2023","outcome":"granted","outcome_keywords":["granted:5","denied:2"],"injury_keywords":["shoulder","back","cervical","neck","lumbar","sprain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//BREWTON_KENNETH_H003073_20231122.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BREWTON_KENNETH_H003073_20231122.pdf","text_length":17630,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H003073 \n \nKENNETH BREWTON, Employee                                                                  CLAIMANT \n \nMAY AVENUE PLUMBING, INC., Employer                                            RESPONDENT \n \nUNITED FIRE & CASUALTY COMPANY, Carrier                                    RESPONDENT                         \n \n \n OPINION FILED NOVEMBER 22, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n \n STATEMENT OF THE CASE \n  \n On November 13, 2023, the above captioned claim came on for hearing at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on August 2, 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.   Claimant sustained compensable injuries to his left shoulder and low back on \nJanuary 7, 2020. \n 3.   Claimant was earning an average weekly wage of $840.00 which would entitle \nhim  to  compensation  at  the  weekly  rates  of  $560.00  for  total  disability  benefits  and \n\nBrewton – H003073 \n \n2 \n \n$420.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability  of injury to claimant’s cervical spine on January 7, 2020. \n2.     Related medical. \nThe claimant contends that he sustained a compensable injury to his cervical spine \nas  a  result  of  his  January  7,  2020  job  related  accident  and  that  he  is  entitled  to \ncompensation in the form of medical benefits as needed and any additional compensation \nto which he may become entitled. \nThe  respondents  contend  the  claimant  did  not  sustain  a  compensable  cervical \nspine injury on January 7, 2020.  While some medical was paid associated with an alleged \ncervical  spine  injury,  claimant’s  issues  are  degenerative  in  nature.    Alternatively, \nrespondents contend that additional medical treatment is not reasonable and necessary. \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 \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non August 2, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    Claimant has met his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his cervical spine on January 7, 2020. \n\nBrewton – H003073 \n \n3 \n \n 3.   Respondent is liable for payment of all reasonable and necessary medical \ntreatment provided in connection with claimant’s compensable cervical spine injury \nthrough July 30, 2021.    \n \n \n FACTUAL BACKGROUND \n The claimant began working for respondent in 2010 or 2011.  On January 7, the \nclaimant was sitting at a stoplight when he was rearended by another vehicle.  Although \nclaimant  initially  denied  having  been  injured  in  that  accident,  later  that  day  he  sought \nmedical treatment from the emergency room for complaints of neck and back pain. \n After   the   initial   emergency   room   treatment,   claimant   was   treated   at   Elite \nChiropractic and those notes indicate that claimant was treated for cervical and lumbar \nspine sprains.  At some point claimant’s left shoulder became his primary concern and \nclaimant was referred to Dr. Greg Jones for further evaluation.  In a report dated April 3, \n2020,  Dr.  Jones  indicated  that  an  MRI  scan  and  his  examination  had  confirmed  that \nclaimant  suffered  a  rotator  cuff  tear.    Dr.  Jones  performed  surgery  on  claimant’s  left \nshoulder on May 26, 2020.   \n Dr. Jones’ medical reports also indicate that he evaluated claimant for his cervical \nspine complaints and provided treatment in the form of a  Medrol Dosepak and physical \ntherapy.  Dr.  Jones  subsequently  released  claimant from  his  care  for  the  cervical  spine \ninjury. \nClaimant continued to have complaints involving his left shoulder, and as a result \nDr. Jones performed a second surgical procedure on January 21, 2021.  \nMost recently, claimant has been evaluated by Dr. Saer and Dr. Blankenship for \n\nBrewton – H003073 \n \n4 \n \ncontinued complaints involving his low back injury. \nThe respondent accepted as compensable injuries to claimant’s left shoulder and \nlow back as a result of the accident on January 7, 2020.  The respondent apparently also \npaid some benefits for claimant’s cervical spine complaints, but have now controverted \ncompensability of an injury to claimant’s cervical spine.  Accordingly, claimant has filed \nthis  claim  contending  that  he  suffered  a  compensable  injury to  his  cervical  spine  on \nJanuary 7, 2020.  He seeks payment of medical related to that compensable injury. \n \nADJUDICATION \n Claimant contends that he suffered a compensable injury to his cervical spine as \na result of the motor vehicle accident on January 7, 2020.  Claimant’s claim is for a specific \ninjury identifiable by time and place of occurrence.  In order to prove a compensable injury \nas the result of a specific incident that is identifiable by time and place of occurrence, a \nclaimant must establish by a preponderance of the evidence (1) an injury arising out of \nand in the course of employment; (2) the injury caused internal or external harm to the \nbody  which  required  medical  services  or  resulted  in  disability  or  death;  (3)  medical \nevidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was \ncaused by a specific incident identifiable by time and place of occurrence.  Odd Jobs and \nMore v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \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  proving  by a \npreponderance of the evidence that he suffered a compensable injury to his cervical spine \non January 7, 2020.  First, I find that claimant’s injury arose out of and in the course of \n\nBrewton – H003073 \n \n5 \n \nhis employment and that the injury was caused by a specific incident identifiable by time \nand place of occurrence. As previously noted, the parties have stipulated that  claimant \nsuffered compensable injuries to his left shoulder and low back as a result of the motor \nvehicle accident which occurred on January 7, 2020.  Accordingly, there is no question \nthat at the time of the injury claimant was in the course and scope of his employment and \nthat he was involved in a specific incident identifiable by time and place of occurrence. \n I  also  find  that  claimant’s  injury  caused  internal  harm  to  the  body  that  required \nmedical  services  and  that  he  has  offered  medical  evidence  supported  by  objective \nfindings  establishing  an  injury.    Here,  as  previously  noted,  claimant  sought  medical \ntreatment  on  the  day  of  the  accident  from  the  emergency  room  where  his  complaints \nincluded both neck and low back pain.  Shortly thereafter, claimant came under the care \nof Elite Chiropractic on January 31, 2020.  In the medical notes from that date, Dr. Carroll \nstated: \n  Hypertonicity is palpable in the left cervical region, left \n  trapezius, left scalenus and left SCM.   \n \n \n In Walker v. Fort Smith Rim & Bow, Full Commission Opinion filed November 14, \n2006  (F206791), the Full Commission  found that hypertonicity or muscle spasms were \nconsidered  objective  findings  for  purposes  of  permanent  impairment.    Accordingly, \nhypertonicity would be considered an objective finding for purposes of compensability as \nwell.    In  addition,  I  note  that  in  Dr.  Jones’  report  of  September  9, 2020,  he  stated  that \nclaimant had a lot of cervical spasm.  Spasms are considered objective findings. \n As a result of claimant’s cervical complaints, he has received medical treatment in \nthe form of chiropractic treatment and evaluations by Dr. Jones. \n\nBrewton – H003073 \n \n6 \n \n Based  upon  the  foregoing  evidence,  I  find  that  claimant’s  cervical  spine  injury \ncaused internal or external harm to his body that required medical services and that he \nhas offered medical evidence supported by objective findings establishing an injury.  \n Accordingly, I find that claimant has met his burden of proving by a preponderance \nof the evidence that he suffered a compensable injury to his cervical spine on January 7, \n2020. \n Claimant contends that he is entitled to payment of related medical  treatment for \nhis  compensable  cervical  spine  injury.    Respondent  acknowledges  that  it  paid  some \nmedical  treatment  associated  with  claimant’s  cervical  spine  complaints.    I  find  that \nclaimant has met his burden of proving by a preponderance of the evidence that he is \nentitled  to payment  for  medical  treatment provided  for  his  cervical  spine  injury  through \nJuly 30, 2021. \n As previously noted, following the emergency room evaluation claimant received \nchiropractic care for his cervical spine based upon a cervical sprain diagnosis.  Medical \nreports  from  Elite  Chiropractic  dated  April  30,  2020  and  June  30,  2020  indicate  that \nclaimant at that point in time stated that he was experiencing no pain in his neck. \n On May 26, 2020, claimant underwent the first surgery on his left shoulder by Dr. \nJones.  In a report dated September 9, 2020, Dr. Jones stated that he was seeing claimant \nfor an evaluation of pain in his neck with a crick.  He also stated that claimant was suffering \nfrom  cervical  spasm.    Dr.  Jones  indicated  that  he  was  going  to  get  an MRI  scan  of \nclaimant’s  cervical  spine,  place  claimant  on  a  Medrol  Dosepak,  and  send  claimant  to \nphysical therapy for his cervical spine complaints.  \n Claimant began physical therapy for his cervical spine on September 17, 2020 and \n\nBrewton – H003073 \n \n7 \n \nreturned to see Dr. Jones on September 30, 2020.  In his report of that date, Dr. Jones \nindicated that claimant’s neck pain had resolved.   \n   \nWe had seen him at the last visit in early September.  He \n  had a tremendous crick in his neck and head [sic] terrible  \n  radicular pain. I put him on a Medrol Dosepak and a \n  category one cervical spine program and he has responded \n  beautifully.  He has full range of motion of his neck today. \n  He states the pain is gone and in fact he states he wants \n  to go back to work. \n \n  PLAN:  I think he had a spell.  He is over it.  We are going \n  to release him at this point.  No permanent disability is \n  assigned and he is to return to his regular duty status and \n  a note is added to the chart. \n \n \n Thereafter, claimant returned to Dr. Jones with increased shoulder pain as a result \nof his work activities and Dr. Jones eventually performed a second surgery on claimant’s \nleft shoulder on January 21, 2021.   \n In that interim period of time between the release by Dr. Jones on September 30, \n2020  and  the  second  surgical  procedure  on  his  left  shoulder  on  January 21,  2021, \nclaimant had returned to Elite Chiropractic.  In a report dated December 14, 2020, Elite \nstated that claimant denied the presence of pain in his neck. \n Subsequent medical records from Elite do mention claimant’s cervical region but \ndo  not  indicate  that  claimant  received  any  treatment  to  his  cervical  spine  during those \nvisits.    In  addition,  claimant  returned  to  Dr.  Jones  on  January  6,  2021  for complaints \ninvolving his left shoulder.  However, Dr. Jones also stated: \n  \n  His cervical spine we worked up.  He has some degenerative \n  disc disease.  He has asked why can we not “fix that”.  In the \n  spirit of a plumber, in the idea of fixing things, it makes sense, \n\nBrewton – H003073 \n \n8 \n \n  and we have spent some time today counseling that \n  that’s not quite how the neck works and that, unless \n  he is having specific radicular or more straight axial \n  pain, I don’t think that surgery in his neck will be of \n  benefit in terms of his improvement for return to work. \n \n \n There is no indication that Dr. Jones provided any additional medical treatment for \nclaimant’s cervical spine after that date.  The medical reports also indicate that claimant \nwas evaluated by Dr. Saer on July 30, 2021.  Dr. Saer indicated that he had seen claimant \nin  June  for  problems  with  his  neck  and  that  a  cervical  MRI  scan  was  not “terribly \nimpressive.” As a  result, Dr. Saer ordered an EMG/NCV study to explain numbness in \nclaimant’s left arm and hand.  According to Dr. Saer, the study was performed on July 19, \n2021  and  was  basically  normal.    There  is  no  indication  that  claimant  received any \nadditional treatment by Dr. Saer for any cervical spine complaints subsequent to that date.  \nLikewise,  claimant  has  since  came  under  the  care  of  Dr.  Blankenship  for  complaints \ninvolving  his  low  back  injury.  Dr.  Blankenship’s  medical  reports  do  not  indicate  any \ntreatment regarding claimant’s cervical spine. \n Claimant has the burden of proving by a preponderance of the evidence that he is \nentitled to additional medical treatment for his cervical spine complaints.  While I find that \nclaimant has proven that he suffered a compensable injury to his cervical spine, I find that \nclaimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he is  entitled  to \nmedical treatment for his cervical spine injury subsequent to July 30, 2021, when he was \nevaluated by Dr. Saer. \n In  reaching  this  decision,  I  note  that  according  to  claimant’s  testimony  the \nrespondent  went  out  of  business  and  as  a  result  claimant  decided  to  obtain  his  own \n\nBrewton – H003073 \n \n9 \n \nmaster  plumber’s  license.    Claimant  obtained  that  license  in  2021  and  according  to \ndocuments  from  the  Arkansas  Secretary  of  State  the  claimant  incorporated  Brewton \nPlumbing Service on March 1, 2022. \n Accordingly,  as  of  September  30,  2020,  Dr.  Jones  indicated  that  claimant  had \nresponded to treatment for his cervical spine and that he had full range of motion and that \nhis pain had gone.  In addition, claimant indicated that he wanted to return to work.   In \nfact, claimant acknowledged that he had no pain as of that date and wanted to return to \nwork. \n  Q You indicated to Dr. Jones on that date that you had \n  no pain and wanted to return to work; is that right? \n \n  A I believe so, right. \n \n \n Although Dr. Jones mentioned claimant’s cervical spine in his report of January 6, \n2021,  he  had  no  additional  treatment  to  offer  claimant  as  of  that  date  but instead \ncontinued  to  treat  claimant’s  left  shoulder  including  a  second  surgery  on  January  21, \n2021.  After that date, claimant became a master plumber and began performing work for \nhis own plumbing business.  Subsequently, Dr. Saer ordered an MRI scan that was not \nimpressive and he provided no further treatment to claimant’s cervical spine. \n Based upon the foregoing evidence, I find that respondent is liable for payment of \nall reasonable and necessary medical treatment provided in connection with claimant’s \ncervical spine injury through July 30, 2021.  I find that claimant has failed to prove by a \npreponderance  of  the  evidence  that  any  subsequent  cervical  complaints  after July  30, \n2021 are causally related to his original compensable injury.  On September 30, 2020, \nclaimant informed Dr. Jones that he was not having any neck pain and he had full range \n\nBrewton – H003073 \n \n10 \n \nof motion.  Thereafter, claimant began performing work as a plumber for his own plumbing \nbusiness. \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe suffered a compensable injury to his cervical spine on January 7, 2021.  Respondent \nis liable for all reasonable and necessary medical treatment provided in connection with \nclaimant’s cervical spine injury through July 30, 2021. Claimant has failed to prove by a \npreponderance of the evidence that he is entitled to additional medical treatment for his \ncervical spine injury subsequent to that date. \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 \nindemnity benefits were controverted and awarded; therefore, no attorney fee has been \nawarded.   Instead, claimant’s attorney is free to voluntarily contract with the medical \nproviders pursuant to A.C.A. §11-9-715(a)(4). \n Respondents  are  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $453.80. \n IT IS SO ORDERED. \n \n     _________________________________________ \n      GREGORY K. STEWART    \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H003073 KENNETH BREWTON, Employee CLAIMANT MAY AVENUE PLUMBING, INC., Employer RESPONDENT UNITED FIRE & CASUALTY COMPANY, Carrier RESPONDENT OPINION FILED NOVEMBER 22, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian ...","fetched_at":"2026-05-19T23:00:48.494Z","links":{"html":"/opinions/alj-H003073-2023-11-22","pdf":"https://labor.arkansas.gov/wp-content/uploads//BREWTON_KENNETH_H003073_20231122.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}