{"id":"alj-H003073-2025-03-20","awcc_number":"H003073","decision_date":"2025-03-20","opinion_type":"alj","claimant_name":"Kenneth Brewton","employer_name":"May Avenue Plumbing","title":"BREWTON VS. MAY AVENUE PLUMBING AWCC# H003073 March 20, 2025","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["back","shoulder","cervical","lumbar","herniated"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/BREWTON_KENNETH_H003073_20250320.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BREWTON_KENNETH_H003073_20250320.pdf","text_length":13380,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H003073 \n \nKENNETH BREWTON, Employee CLAIMANT \n \nMAY AVENUE PLUMBING, Employer RESPONDENT \n \nUNITED FIRE & CASUALTY CO., Carrier RESPONDENT \n \n \n OPINION FILED MARCH 20, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n \n On March  10,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort \nSmith, Arkansas.   A pre-hearing conference was conducted on January 15, 2025, and \na pre-hearing  order  was  filed  on  that  same date. A  copy  of  the  Pre-hearing  Order  has \nbeen  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \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 prior Opinion of November 22, 2023, is final. \n 3.  The  respondent  is  paying  claimant  a  5%  impairment  rating  to  the  body  as  a \nwhole for his compensable low back injury based on the rating assigned by Dr. Bruffett. \n\nBrewton – H003073 \n \n-2- \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1. Claimant’s entitlement to a 13% rating to the body as a whole for his low back \ninjury. \n 2. Controversion of the difference between the 5% rating and 13% rating. \n 3. Late payment penalty. \n The  claimant  contends  that  his  primary  treating  physician  assessed  a  13% \nimpairment rating to the body as a whole regarding the claimant’s back on September 5, \n2024, and that information was sent to respondent’s attorney on September 6, 2024. \nRespondents  have  controverted  the difference  between  the 5%  rating  and  13%  rating, \nand owe a late payment penalty. \n The respondents contend that all appropriate benefits are being paid with regard \nto  claimant’s  compensable  injuries  sustained  on  January  7,  2020.  An  independent \nmedical  evaluation  has  been  conducted  by  Dr.  Wayne  Bruffett.  Dr.  Bruffett  was  asked \nwhether or not permanency would apply, and he assigned a 5% rating to the body as a \nwhole. Upon receipt of the IME report, the adjuster started timely payments associated \nwith the applicable rating. \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 \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference \n\nBrewton – H003073 \n \n-3- \nconducted on January 15, 2025, and contained in a Pre-Hearing Order filed that same \ndate are hereby accepted as fact. \n 2. Claimant has met his burden of proving by a preponderance that he has a \n13% impairment rating to the body as a whole for his low back injury. \n 3. Respondent has controverted claimant’s entitlement to payment of permanent \npartial disability benefits in an amount equal to 8% to the body as a whole. \n 4. Respondent is not liable for payment of a late payment penalty. \n \nFACTUAL BACKGROUND \n On January 7, 2020, while working for respondent, claimant was sitting at a stop \nlight  when  he  was  struck  from  behind  by  another  vehicle.  Respondent  accepted  as \ncompensable  injuries  to  claimant’s  low  back  and  left  shoulder  as  a  result  of  that \naccident. Respondent did not accept as compensable an injury to claimant’s cervical \nspine. A hearing on compensability of claimant’s cervical spine injury was conducted on \nNovember  13,  2023.  Following  that  hearing,  an Opinion  was  filed  on  November  22, \n2023,  finding  that  claimant  had  proven  compensability  of  his  cervical  spine  injury  and \nawarding payment of medical benefits. That Opinion was not appealed and the parties \nhave stipulated that it is final. \n The  current  claim  involves  the  compensable  low  back  injury.  For  that  injury \nclaimant  initially  sought  medical  treatment  from  Dr.  Edward  Saer.  Dr.  Saer  treated \nclaimant  conservatively  and  ordered  an  MRI  scan  which  he  interpreted  as  showing \ndegenerative  changes.  In  a  report  dated  September  21,  2021,  Dr.  Saer  stated  that \nclaimant  had  reached  maximum  medical  improvement  and  that  he  had  no  permanent \n\nBrewton – H003073 \n \n-4- \nimpairment. In his report, Dr. Saer also noted that claimant had undergone a functional \ncapacity evaluation which determined that claimant was functioning in the medium work \ncategory.  Dr.  Saer  imposed  permanent  work  restrictions  on  the  claimant’s  ability  to \nreturn to work.  \n Thereafter,  claimant  came  under  the  care  of  Dr.  Blankenship  for  his  low  back \ncomplaints.  Dr.  Blankenship  also  ordered  an  MRI  scan  and  interpreted  it  as  showing \nslight  anterolisthesis  at  L4-5  with  an  annular  fissure  and  neural  foraminal  narrowing;  a \ndisc  bulge  with  facet  arthropathy  without  significant  impingement  at  L5-S1; and an \nupper lumbar facet arthropathy, less significant than at L4-5 and L5-S1. \n Dr.  Blankenship  referred  claimant  to  Dr.  Cannon  for  pain  management  and  his \ntreatment has consisted of facet injections. According to Dr. Blankenship’s report of July \n15,  2024,  claimant  is  receiving  the  facet  injections  every  three  months  and  it  provides \n75% relief which lasts 2-3 months. Dr. Blankenship also stated that as the injections are \nproviding relief, surgery would not be indicated. However, it was his opinion that it is as \nlikely  as  not  that  at  some  point  the  injections  will  not  provide  relief  and  surgery  would \nneed to be considered.  \nIn a letter to Attorney Walker dated September 5, 2024, Dr. Blankenship stated:  \nThe  patient  does  qualify  for  an  Impairment  rating  based  on \nthe  4\nth\n Edition  AMA  Guidelines.  He  does  have  a  grade  1 \nanterolisthesis  at  the  L4-5  level  which  would  qualify  under \nsubheading  3A  for  7%  impairment  to  the  body  as  a  whole. \nThe  gentleman  also  has  a  posterior  disc  protrusion  at  the \nlumbosacrum    which    would    qualify   under    2C   for    an \nunoperated on disc protrusion for 7% to the body as a whole. \nThese  would  be  combined  via  the  combined  values  table. \nHis total impairment would be 13% to the body as a whole. \n \n Following  Dr.  Blankenship’s  assignment  of  the  13%  rating,  respondent  had \n\nBrewton – H003073 \n \n-5- \nclaimant undergo an evaluation by Dr. Wayne Bruffett on October 18, 2024. At the time \nof that visit, Dr. Bruffett did not have the actual MRI scan of June 3, 2024, available to \nhim.  After  the  MRI  scan  was  provided  to  him,  Dr.  Bruffett  in  an  addendum  dated \nNovember 1, 2024, stated:  \nI was able to review the MRI scans. Honestly they look pretty \ngood.  He  has  some  mild  degenerative  changes.  On  the \nmore recent study he may have a small annular tear at L3-4. \nHe apparently had a significant injury if he required shoulder \nsurgery. So I would say with a reasonable degree of medical \ncertainty  that  he  did  sustain  injury  to  the  lumbar  spine  as \ndescribed  above.  However  he  was  treated  non  operatively \nand  I  can  not  say  that  he  has  a  specific  herniated  nucleus \npulposis.  And my opinion  an  impairment  rating of 5% of the \nwhole person based on the lumbar spine is reasonable. \n \n Based  on  the  opinion  of  Dr.  Bruffett,  respondent  accepted  and  paid  claimant \npermanent  partial  disability  benefits  based  on  the  5%  impairment  rating.  Claimant \ncontends that the 13% rating assigned by Dr. Blankenship is appropriate and requests \npayment of the difference in the ratings as well as an attorney’s fee and penalty. \n \nADJUDICATION \n The first issue for consideration is claimant’s impairment rating. As previously \nnoted,  Dr.  Blankenship  assigned  claimant  a  13%  rating  to  the  body  as  a  whole  for  his \nlow back injury and Dr. Bruffett has opined that the proper rating is 5% to the body as a \nwhole.  Based  upon  the evidence  presented,  I  find  that  Dr.  Blankenship’s  opinion  is \ncredible  and  entitled  to  greater  weight.  First,  Dr.  Blankenship  has  been  claimant’s \nauthorized treating physician and has evaluated claimant on a number of occasions. On \nthe other hand, Dr. Bruffett has evaluated the claimant only once.  \n Furthermore,  Dr.  Blankenship  specifically  references  the  4\nth\n Edition  of  the  AMA \n\nBrewton – H003073 \n \n-6- \nguides  as  a  basis  for  his  impairment  rating.  After  my  review  of  the  citations  in  Dr. \nBlankenship’s report with the AMA guides, I find that his rating is appropriate and in \naccordance with the applicable law. Therefore, I find that claimant has met his burden of \nproving by a preponderance of the evidence that he is entitled to payment of permanent \npartial  disability  benefits  based  upon  the  13%  impairment  rating  assigned  by  Dr. \nBlankenship. \n I also find that respondent has controverted the difference in payment of the 13% \nimpairment rating assigned by Dr. Blankenship and the previously accepted 5% rating.  \n The last issue for consideration involves claimant’s request for a penalty. I find \nthat under the circumstances the respondent is not liable for a late payment penalty. \n This  case  was  originally scheduled  for  a  hearing  on  respondents  Motion  to \nDismiss  for  September  9,  2024.  On  September  6,  2024,  Attorney  Walker  sent  a  letter \nattaching the September 5, 2024, report from Dr. Blankenship assigning an impairment \nrating.  Attorney  Walker  also  indicated  that  claimant  was  filing  a  claim  for  permanent \npartial  disability  benefits  and  that  the  Motion  to  Dismiss  was  now  moot.  In  an  email \nresponse  of  September  6,  2024,  Attorney  Wood  stated  that  respondent  had  no \nobjection  to  removing  the  dismissal  hearing  from  the  docket.  She  also  indicated  that \nrespondent   was   requesting   an   independent   medical   evaluation   with   respect   to \nclaimant’s permanent impairment. Respondent also suggested that the file be returned \nto  General  Files  stating  that  an  evaluation  might  eliminate  the  need  for  litigation  or \nresolve in a settlement. Attorney Walker stated that claimant did not object to returning \nthe file to General Files. Dr. Bruffett subsequently wrote the report assigning claimant a \n5%  rating  which  respondent  accepted.  However,  claimant  contended  that  the  13% \n\nBrewton – H003073 \n \n-7- \nimpairment  rating  assigned  by  Dr.  Blankenship  was  appropriate  and  this  hearing  was \nconducted. \n I  find  that  under  the  circumstances  respondent  was  entitled  to  obtain  an \nevaluation to determine whether claimant had any permanent impairment as a result of \nhis  compensable  low  back  injury  and  the  extent  of  that  impairment  rating.  In  fact,  Dr. \nBruffett  did  assign  claimant  an  impairment  rating  which  was  accepted  by  respondent. \nEven  though  I  have  found  that  the  impairment  rating  assigned  by  Dr.  Blankenship  is \nappropriate, respondent nevertheless was entitled to investigate claimant’s claim for \npermanent impairment and obtain evidence with respect to that issue.  \n Accordingly, I find that respondent is not liable for the payment of a late payment \npenalty on the impairment rating. \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe  is  entitled  to payment  of  permanent partial  disability  benefits  in  an  amount equal  to \n13% to the body as a whole based upon the permanent impairment rating assigned by \nDr.  Blankenship.  Respondent  has  controverted  claimant’s  entitlement  to  payment  of \npermanent  partial  disability  benefits  in  an  amount  equal  to 8%  to the  body  as  a  whole \nbased  upon  the  difference  between  the  13%  impairment  rating  assigned  by  Dr. \nBlankenship  and  the  previously  accepted  rating  of  5%  assigned  by  Dr.  Bruffett. \nRespondent is not liable for payment of a late payment penalty. \n Pursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \n\nBrewton – H003073 \n \n-8- \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.    \n All  sums herein  accrued are payable  in a  lump  sum and  without  discount.   This \naward shall bear interest at the maximum legal rate until paid. \nRespondents are liable for payment of the court reporter’s charges for \npreparation of the hearing transcript in the amount of $278.45. \n IT IS SO ORDERED. \n \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H003073 KENNETH BREWTON, Employee CLAIMANT MAY AVENUE PLUMBING, Employer RESPONDENT UNITED FIRE & CASUALTY CO., Carrier RESPONDENT OPINION FILED MARCH 20, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansa...","fetched_at":"2026-05-19T22:42:47.629Z","links":{"html":"/opinions/alj-H003073-2025-03-20","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/BREWTON_KENNETH_H003073_20250320.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}