{"id":"alj-H004773-2024-03-19","awcc_number":"H004773","decision_date":"2024-03-19","opinion_type":"alj","claimant_name":"Donald Hodge","employer_name":"Dept. Of Human Services","title":"HODGE VS. DEPT. OF HUMAN SERVICES AWCC# H004773 MARCH 19, 2024","outcome":"granted","outcome_keywords":["dismissed:1","granted:3","denied:2"],"injury_keywords":["cervical","shoulder","back","lumbar","neck","hip","thoracic","fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/HODGE_DONALD_H004773_20240319.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HODGE_DONALD_H004773_20240319.pdf","text_length":33890,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H004773 \n \nDONALD P. HODGE, EMPLOYEE       CLAIMANT \n \nDEPT. OF HUMAN SERVICES, EMPLOYER             RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/TPA                          RESPONDENT \n \n \n \nOPINION FILED 19 MARCH 2024 \n \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 20 December 2023 in Little Rock, Arkansas. \n \nMr. Gregory R. Giles, of Moore, Giles & Matteson, LLP, appeared for the claimant. \n \nMr. Robert H. Montgomery, of Public Employee Claims Division, appeared for the \nrespondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 20 December 2023 in Little Rock, Arkansas, \nafter the parties participated in a pre-hearing telephone conference on 3 October 2023. A \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on the same day the conference. The Order stated the following ISSUES TO \nBE LITIGATED: \n1.  Whether the claimant was owed for underpayments of temporary total disability and \npartial disability benefits. \n2.  Whether the claimant was entitled to an impairment rating associated with a \ncervical injury. \n\nHODGE- H004773  \n2 \n \n3.  Whether the claimant was entitled to additional medical treatment.\n1\n \n4.  Whether the claimant is entitled to wage-loss disability benefits. \n5.  Whether the claimant is entitled to an attorney’s fee. \nThe parties’ CONTENTIONS, as set forth in their pre-hearing questionnaire responses, \nwere incorporated into the Pre-hearing Order. The CLAIMANT contends: \n1. That he was initially assessed at maximum medical improvement (MMI) with \nregard to all injuries on 11 August 2021. \n2. That the assessment was premature, and he did not reach MMI until 3 May 2022. \n3. That he was underpaid temporary total disability (TTD) benefits as a result of those \ndifferent assignment dates. \n4. That he was entitled to TTD between 20 May 2021 and 5 December 2021.\n2\n \n5. That his permanent partial disability (PPD) payments should have started on 3 May \n2022 and that he would be entitled to PPD benefits for a five percent (5%) \nimpairment rating to his right shoulder and a ten percent (10%) impairment rating \nto his lower back. \n6. Also, that given the nature of the “posterior disc bulges identified at C5-6 and C6-7 \nwith increased signal associated cervical cord” that he should be awarded a cervical \nimpairment rating of at least five percent (5%). \n7. That he should be awarded wage-loss disability benefits in excess of the anatomical \nimpairment ratings assigned. \n \n1\n At the beginning of the hearing, the entitlement to ongoing treatment issue was \nwithdrawn by the claimant. TR at 13-14. \n2\n The Prehearing Order lists the claim for TTD beginning on 13 May 2021, but at the \nbeginning of the hearing, the claimant stated that 20 May 2021 was the correct date for \nthose claimed benefits to begin. TR at 13. \n\nHODGE- H004773  \n3 \n \n8. That he is currently prescribed pain management medications through his primary \nphysician Dr. Becker, which he contends are reasonable and necessary treatments \nfor his compensable condition(s) for which the respondents should be responsible for \npayment.\n3\n \n9. And that he is entitled to an attorney’s fee. \nThe RESPONDENTS contend: \n1. That the claimant reported lifting a box of blueprints that slid and hit his right foot. \n2. That he reported falling, grabbing a wheeled cart, and sliding into a file cabinet, and \nthat the claim was accepted as compensable with appropriate benefits being paid. \n3. That appropriate TTD and PPD benefits have been paid.  \n4. That the claimant underwent right shoulder arthroscopy on 18 December 2020 with \nDr. Reynolds and was found to be at MMI on 11 May 2021. The claimant was \nassigned a ten percent (10%) whole-body impairment rating by Dr. Reynolds on 7 \nJune 2021, which the respondents accepted and paid. \n5. That Dr. Bruffett treated the claimant for lumbar symptoms and that the medical \nrecords indicate that the claimant did not want any additional surgery, so Dr. \nBruffett found him to be at MMI on 11 May 2021. The claimant’s full-duty work \nstatus was continued on 21 June 2021. \n6. That several months later, on 15 November 2021, the claimant indicated that he was \ninterested in surgery. An L4-5 laminectomy was then performed on 2 December \n2021. \n7. TTD benefits were reinstated after the surgery and paid through 2 May 2022.  \n8. PPD benefits were then initiated and paid through 9 March 2023. \n \n3\n See FN1. \n\nHODGE- H004773  \n4 \n \n9. TTD and PPD benefits were appropriately paid and that the claimant is not entitled \nto TTD benefits between 20 May 2021\n4\n and 5 December 2021, as he declined \nadditional treatment—namely surgery— recommendations from his authorized \nphysician and was found at the time to be at MMI and released to full-duty. He \ncannot now claim entitlement to benefits during that period when he refused \ntreatment. \n10. That not only is the claimant not entitled to any additional TTD or PPD benefits, but \nhe was actually overpaid in the amount of $1,589. \n11. That the claimant is not entitled to wage-loss benefits as he is working in \nconstruction oversight consistent with his experience and currently waiting for a \ndetermination on Social Security benefits. \n12. That the respondents continue to pay reasonably necessary medical expenses, \nincluding those incurred from Dr. Becker.\n5\n \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed on 15 June 2020 when the \nclaimant sustained compensable injuries to his back, neck, right foot, right arm/right \nshoulder and right hip. Those injuries were accepted, and benefits were paid. \n3.  The claimant’s average weekly wage was $906.90, entitling him to compensation \nrates of $605.00 for temporary total disability and $454.00 for permanent disability. \n4.  Claimant reached maximum medical improvement with regard to his right foot \ncontusion/fifth toe fractures on 8 October 2020, with no impairment rating (or a rating of \nzero percent 0%). \n \n4\n See FN2. \n5\n See FN1. \n\nHODGE- H004773  \n5 \n \n5.  Claimant reached MMI with regard to his compensable shoulder injuries on 10 May \n2021, with an assigned impairment rating of five percent (5%) to the body as a whole. \n6.  Claimant was initially assessed at MMI with regard to his low back injury on 11 \nAugust 2021, but was later deemed to require surgery that occurred on 2 December 2021, \nwith MMI being found again on 3 May 2022 with a ten percent (10%) impairment rating \nassigned at that time. \nThe claimant was the sole WITNESS testifying at the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law \nunder ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n2. The previously noted stipulations are accepted as fact. \n3.  The claimant has not satisfied his burden for an underpayment on or additional \npayments owed for TTD benefits. \n4.  The claimant has not satisfied his burden for an underpayment of PPD benefits \nunder his contention that “PPD benefits should have started on May 3, 2022.” The records \nreflect that PPD payments began on that date. \n5.  The claimant has not satisfied his burden in showing that he is entitled to an \nimpairment rating for a cervical injury. \n6.  The claimant has not satisfied his burden in showing that he is entitled to wage-loss \ndisability benefits. \n7.  Consistent with these findings, the claimant is not entitled to an attorney’s fee. \nIII.  HEARING TESTIMONY and EVIDENCE \nClaimant Donald P. Hodge \n\nHODGE- H004773  \n6 \n \n At the time of his compensable injury, Mr. Hodge was working as a Training and \nProject Manager at the Department of Human Services’ Life Safety Code Department. He \nexplained that the department was responsible for ensuring that institutional facilities and \nbuilding projects met certain safety standards. The job entailed both reviewing plans and \nblueprints in the office and field work at construction sites. [TR at 17.] \n On the day of his injury, 15 June 2020, the claimant stated that he was carrying a \nbox of blueprints in the office when fell from the box and hit his foot, causing him to fall \ninto a file cabinet. [TR at 19-20.] He was transported by ambulance to the emergency \ndepartment at Baptist Hospital in Little Rock, where he reported right shoulder pain, right \nhip pain, thoracic spine tenderness, lumbar tenderness, and right foot pain. [Cl. Ex. No 1 at \n37.] The ordered X-rays showed no acute fractures, but some degenerative changes. He was \nassessed with a right foot contusion, hip arthralgia, and acute shoulder pain, and he was \ndirected to follow-up with his primary physician. [Id. at 40-42.] \n Mr. Hodge followed up at the Morrilton Medical Clinic the following day, where he \nwas taken off work until the following week and ordered to see physical therapy. He \npresented again to the clinic on 22 June 2020 when it was noted that physical therapy had \nnot yet been approved. Initiating therapy was again ordered, and the claimant was released \nto work at modified duty for approximately two weeks, noting limitations for long periods of \nsitting and limited use of his right upper extremity. [Id. at 76-82.] \n The claimant could not recall exactly when he returned to work, but that it would \nhave only been for a couple of days, as he had already planned to be out on vacation for a \ncouple of weeks at the time following his fall. He testified that he eventually received a call \nwhile leaving a physical therapy appointment and was informed that his employment was \nbeing terminated. [TR at 21-22.] He later received a letter dated 14 July 2020 confirming \nhis termination. [Cl. Ex. No 1 at 83-84.] \n\nHODGE- H004773  \n7 \n \n He continued with physical therapy and was referred for an MRI and further \nspecialty care. Mr. Hodge saw Dr. Robert Martin for his foot pain on 3 August 2020. Dr. \nMartin ordered X-rays that revelaed a fracture to the right fifth toe, but noted it was \nhealing on its own. He ordered light duty and set a follow-up after a month. [TR at 23; Cl. \nEx. No 1 at 91-94]. Mr. Hodge testified that his foot was healed and agreed that “everything \nis good there.” [TR at 24]. \n The claimant saw Trent Tappan, PA-C, at OrthoArkansas on 12 August 2020. Mr. \nHodge recalled Tappan initially recommending a steroid injection for his spine [TR at 24], \nbut the records reflect an initial assessment of low back pain and lumbar spinal stenosis, \nwith a plan for continued physical therapy, following up in one month, and continuing with \nrestricted activities [Cl. Ex. No 1 at 97-99].  \n Mr. Hodge also had an appointment for his shoulder with Dr. Kirk Reynolds that \nsame day. Dr. Reynolds suspected right rotator cuff and labrum injuries and ordered an \nMRI for better evaluation. He recommended modified work with no lifting, pushing, or \npulling, and no work above the shoulder for the right arm. Dr. Reynold also noted that Mr. \nHodge was not at MMI. [Cl. Ex. No 1 at 103].  \n On 9 September 2020, the claimant saw Trent Tappan again and reported \ncontinuing low back pain that radiated down his right leg. The note reflects that physical \ntherapy did not seem to help the pain. A steroid injection was recommended at L4-5 on the \nright side. Tappan noted the spinal stenosis again and that the injection could be more \ndiagnostic in nature than therapeutic, but hoped it would provide some relief. [Cl. Ex. No 1 \nat 108]. \n Mr. Hodge followed up with Dr. Martin the following day and was released to full-\nduty without restrictions on his foot injuries. He was not yet deemed at MMI, however, and \nscheduled to return again in one month for a final check. [Cl. Ex. No 1 at 113.] \n\nHODGE- H004773  \n8 \n \n The claimant then presented to Trent Tappan again on 7 October 2020 for his back \npain. Mr. Tappan noted that Mr. Hodge was doing much better since the injection and \nreleased him to full duty at MMI without any restrictions. [Cl. Ex. No 1 at 121-122.]  \n Mr. Hodge saw Dr. Martin for his foot again the following day, 8 October 2020, and \nwas released related to his foot at MMI with no restrictions and a zero percent (0%) \nimpairment rating. [Cl. Ex. No 1 at 125]. \n On 26 October 2020, the claimant presented to Dr. Reynolds again to review the \nshoulder MRI results and discuss treatment options. They agreed that right should surgery \nwas appropriate, and Dr. Reynolds continued the claimant’s modified work duty status, \nrestricting his right upper extremity use. [Cl. Ex. No 1 at 130.] Mr. Hodge testified that his \nTTD benefits continued at this time. [TR at 24.] The right shoulder arthroscopy was \nperformed on 19 December 2020. [Cl. Ex. No 1 at 131-134.] Part of the tear was irreparable, \nbut the procedure was otherwise completed without issue. The Claimant followed up with \nDr. Reynolds on 28 December 2020, where he was found to be doing well without new \ncomplaints. A return visit was scheduled for one month out. [Cl. Ex. No 1 at 138.] \n The claimant then saw Trent Tappan for back pain again on 13 January 2021. The \nnote reflects that “he seemed to do great with the last injection,” but was experiencing pain \nagain. [Cl. Ex. No 1 at 144.] They discussed surgical and non-surgical treatment options and \ndecided to move forward with another injection. \n Mr. Hodge returned to Dr. Reynolds on 25 January 2021, where he was found to be \nrecovering satisfactorily from the shoulder procedure. A recent MRI study of his cervical \nspine was reviewed, and Dr. Reynolds noted “degenerative disc disease with bulges at C5-\nC6 and C6-C7.” [Cl. Ex. No 1 at 151]. The note reflects that he did not see any surgical \nindications in the cervical process but referred the claimant back to Mr. Tappan for further \n\nHODGE- H004773  \n9 \n \nreview. Mr. Hodge’s modified duty status was continued at that time, with a visit scheduled \nin another six weeks.  \n A second spine injection was performed on 29 January 2021, and the claimant \nfollowed up again with Tappan on 8 February 2021. Tappan noted that the pain on the \nright side of the back had improved, but some chronic pain persisted. He also noted at that \nvisit that, “[h]e seems somewhat down [and] out today because he has not worked in the \npast few months” and “feels like his pain limits him.” [Cl. Ex. No 1 at 157-159.] Mr. Hodge \nalso reported neck pain, and they reviewed the MRI study of his cervical spine. Tappan saw \nsome foraminal stenosis around C6-C7 and possibly at C7-T1 and believed that Mr. Hodge’s \nneck complaints were related to the stenosis. They discussed again the possibility of a \nlumbar decompression procedure if his back pain did not improve, and he was directed to \nreturn as needed. Id. \n At a 9 March 2021 visit with Dr. Reynolds, they discussed his status and progress \nthree months after the right shoulder arthroscopy and that the only “cure” for his \nirreparable tear would be a reverse shoulder arthroplasty. The claimant’s restrictions were \ncontinued, he was found not to be at MMI, and a return visit was set for six weeks out. [Cl. \nEx. No 1 at 163.] \n The claimant then saw Tappan again on 3 May 2021, when he reported a new \ncomplaint of left side back and leg pain. Tappan noted the first back injection provided \ngreat relief, but the second one did not. He described discussing being at a “fork the road” \nand he needed to reconsider surgery or “just leave this alone altogether.” Claimant was \nreferred to Dr. Bruffett for further discussions on surgery, and an updated MRI was \nordered. [Cl. Ex. No 1 at 168.]  \n Mr. Hodge presented again to Dr. Reynolds on 10 May 2021 to review his post-\noperative shoulder condition. They discussed the risks of a reverse arthroplasty and the \n\nHODGE- H004773  \n10 \n \nbenefits of continued strengthening at home. The claimant declined an injection that was \noffered in the clinic, and he was not interested in pursuing arthroplasty. Dr. Reynolds \nplaced the claimant at MMI and referred him for a Functional Capacity Evaluation (FCE) \nfor an assessment of his deficits, noting that he would follow that report with permanent \nrestrictions and any appropriate impairment rating. [Cl Ex. No 1 at 175.] The FCE found \nhim to have an eight percent (8%) impairment rating to the upper extremity which \ntranslated to a five percent (5%) permanent rating to the whole person. [Cl Ex. No 1 at 184.] \nHe was also recommended in the Light Classification of work. [Cl Ex. No 1 at 187.] \n The claimant first saw Dr. Bruffett, after a referral from Tappan, on 26 May 2021. \nThey discussed possible surgical intervention to alleviate his symptoms, but decided that \nspine surgery was be “a last resort.” [Cl. Ex. No 1 at 209.] The note makes no mention of \nwork restrictions. \n On 16 June 2021 the claimant saw Dr. Bruffett again, and after another steroid \ninjection, where they discussed different directions for his course forward. [Cl Ex. No 1 at \n215.] Low back pain and right knee pain were noted as the presenting symptoms. Dr. \nBruffett noted his discomfort with simply prescribing opioids and that the claimant should \n“go get a job,” after which he hoped to release him at MMI. He noted further that Mr. \nHodge should discuss his care and continuing prescription pain medication with his \nprimary physician and that they could “need to have surgery” despite concerns around its \nuncertain outcomes. The note ended with, “[w]e will see how this goes.” [Id.] \n The claimant returned to Dr. Bruffett on 11 August 2021 and was released without \nrestriction and placed at MMI with a seven percent (7%) impairment rating of the whole \nperson. [Cl Ex. No 1 at 220.] They discussed Mr. Hodge’s primary physician prescribing as-\nneeded medication for pain, and the note reflects that those prescriptions “would be under \nMr. Hodge’s regular insurance not Workers’ Comp.” It goes on, “I think he has completed \n\nHODGE- H004773  \n11 \n \nthe healing phase for his work injury. He really does not want to have surgery because I \ncannot guarantee him that it would completely alleviate his pain.” [Id.] \n Mr. Hodge returned, again, to Dr. Bruffett on 8 November 2021, when they \ndiscussed, again, the risks and benefits of spinal surgery against the option to “just leave \nthis alone and live with what he has.” [[Cl Ex. No 1 at 235.] The claimant opted for surgery \nto address the ongoing pain in his lower back. That procedure, bilateral hemilaminotomies \nat L4-L5 with decompression for stenosis, occurred on 2 December 2021. [Cl Ex. No 1 at \n236.] The claimant testified that his TTD payments were reinstated after the back surgery. \n[TR at 33-34.] \n Dr. Bruffett saw the claimant post-surgically on 29 December 2021 and then again \non 9 February 2022. [Cl Ex. No 1 at 243, 248.] During the latter visit, he ordered physical \ntherapy and discussed a return-to-work status and possible FCE, along with anticipating \nplacing him at MMI at the next visit. At the subsequent visit on 11 April 2022, Dr. Bruffett \nordered the FCE, noting, “I will see him back afterwards and then I can calculate his \nimpairment rating and such. There is currently no change in his work status.” [Cl Ex. No 1 \nat 255.] \n The FCE occurred on 25 April 2022, and the report showed that the claimant gave \nreliable effort. Dr. Bruffett reviewed the report with him on 2 May 2022 and adopted its \nrecommendation for a Light Classification of work. The claimant was released at MMI with \npermanent light duty restrictions and a ten percent (10%) whole body impairment. [Cl Ex. \nNo 1 at 281.] The note also reflected a referral to Dr. Becker for pain management. A letter \nfrom the Arkansas Insurance Department to Mr. Hodge, dated 4 May 2022, acknowledged \nDr. Bruffett’s permanent impairment rating and advised of him associated PPD benefits \nbeginning on 3 May 2022. [Cl Ex. No 1 at 284.] \n\nHODGE- H004773  \n12 \n \n The claimant testified that the respondents have covered the costs of his ongoing \ncare under Dr. Becker. [TR at 36.] He also testified, consistent with his Contentions, that \nhe felt that he was entitled to an impairment rating and compensation for pain in his neck, \nagreeing with his attorney that he should be entitled to a rating of at least five percent \n(5%). [TR at 35]. \n Mr. Hodge also testified about his work history and recent coordination with a \nvocational counselor. [TR at 38-46.] He said that he was awaiting a determination on a \nSocial Security Disability application and that he was already receiving some retirement \nbenefits from the state. When asked how long he intended to work, he said until the age of \n67, “but if, you know, working for myself, there’s no retirement. There are no benefits. I \nwould have to work until I just couldn’t work anymore. I would just have to continue to \nwork.” [TR at 50.] He affirmed that he was requesting wage loss beyond the benefits \nalready assigned for his impairment ratings. [TR at 51.] \n On cross examination, Mr. Hodge confirmed various aspects of his work history, \ncertifications, and experience, including work as a Certified Welding Inspector, Certified \nAppraiser, Licensed Home Inspector, Certified Lead Paint Inspector, and Licensed General \nContractor, with knowledge of HUD quality standards, and Life Safety Code(s). He \npreviously owned a home remodeling company and a truck washing and soap \nmanufacturing business. [TR at 57-58.] In his role at DHS, he was a supervisor responsible \nfor four to five other employees. He discussed the intersection of or referencing between Life \nSafety Code and five prevention, electrical, and plumbing codes and that he trained and \noversaw others’ work ensuring compliance with the same. [TR at 60-61.] \n The claimant explained that he recalled discussing surgical options for his back with \nDr. Bruffett, but that he was hesitant given stories he heard from others who had not have \nfavorable post-surgical outcomes. He said that he vaguely remembered being in shock when \n\nHODGE- H004773  \n13 \n \nDr. Bruffett released him at MMI on 11 August 2021, because he was “still having lots of \npain.” [TR at 75.] Mr. Hodge agreed that he began receiving TTD benefits again after \nhaving the back procedure in December of 2022. [TR at 77.] \n Discussing his current happenings, Mr. Hodge testified that he was currently doing \ncontract inspection work, but that he was looking for other work with good benefits. [TR at \n79-80.] He said that he could drive a couple of hours before needing to get out of the car to \ntake a break. When not working, he might go back to bed until the middle of the morning \nafter seeing his wife off to work in the early morning hours. He often spends time on social \nmedia, watching tv, or visiting with family. He likes to fish when he feels up to it or to \nspend time with his grandchildren. [TR at 81-84.]  \n On Redirect examination, the claimant stated that he would love to try going back to \nwork, “if they would allow me accommodations and stuff, you know, everything I need to get \nthrough the day, I would love to give it a shot.” [TR at 87.] He is currently not interested in \nshoulder replacement surgery, but “if I ever get the chance to retire, then, it would be an \noption, then, because I wouldn’t have to work.” [TR at 90.] \n The claimant provided several letters reflecting his vocational rehabilitation \nmeetings with Keondra Hampton. According to her initial report, dated 27 May 2022, the \nclaimant was not interested in returning to work for any state agency. [Resp. Ex. No2 at 15.] \nHe confirmed the same in his testimony, saying that he “did not think it was advantageous \nat all for me to pursue that.” [TR at 86.] In her 1 July 2022 Progress Report, Ms. Hampton \nstated, “Mr. Hodge is an excellent candidate to return to the workforce. He has a stable \nwork history and ahs acquired some skills and transferrable skills from his education, \ntraining, and work experience that he should be able to utilize in returning to a new lighter \ncapacity job in the future.” [Cl. Ex. No 1 at 290.] Her 15 September 2022 Progress Report \nnoted that he declined a home inspection job due to the pay. [Cl. Ex. No 1 at 299.] But that \n\nHODGE- H004773  \n14 \n \nreported went on to note that he remained an “excellent candidate to return to the \nworkforce” and that his work experience “afforded him the opportunity to acquire \nsupervisory and leadership skills, along with other skills.” She noted in a 31 October 2022 \nreport that he again declined a part-time inspector position because he did not believe the \nwork opportunities were consistent enough. [Cl. Ex. No 1 at 304.] A Progress Report from \nJanuary 2023 noted Mr. Hodge disapproving of another job due to a lower wage than he \nrequired. [Cl. Ex. No 1 at at 319.] \n The respondents contend that the claimant was overpaid on his PPD benefits. On 16 \nMarch 2023, Mr. Hodge received a letter from the Arkansas Insurance Department \nadvising that he was “inadvertently overpaid workers’ compensation benefits in the amount \nof $1,859.00 for your PPD payments.” [Cl. Ex. No 1 at 331.] The letter also stated that the \noverpayment would be credited against any future payments and that he would be \nresponsible for reimbursing any remaining balance. The respondents exhibits, however, \nreflect that his last PPD payment was issued on 9 March 2023. [Resp. Ex. No 1 at 6.] \nIV.  ADJUDICATION \nThe stipulated facts, as agreed during the pre-hearing conference, are outlined above. It \nis settled that the Commission, with the benefit of being in the presence of the witness and \nobserving his or her demeanor, determines a witness’ credibility and the appropriate weight \nto accord their statements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 \nS.W.2d 522 (1999).   \nA. The Claimant is Not Entitled to Additional Temporary Total Disability Benefits. \n Temporary Total Disability is that period within the healing period in which an \nemployee suffers a total incapacity to earn wages (emphasis added). Arkansas State \nHighway and Transportation Dept. v. Breshears, 272 Ark. App. 244, 613 S.W.32d 392 \n(1981). It is the claimant’s burden to prove that he or she is within the healing period and \n\nHODGE- H004773  \n15 \n \nsuffers a total incapacity to earn wages in the same or other employment. Paalazolo v. \nNelms, 46 Ark. App. 130, 877 S.W.2d 938 (1994). \nThe parties stipulated that the claimant was found to be at MMI for his low back injury \non 11 August 2021. Their disagreement on his entitlement TTD benefits runs, however, \nbetween the dates of 20 May 2021, when the records\n6\n show that they stopped, and 5 \nDecember 2021, when they began again following his back surgery. The records reflect that \nthe claimant was first released by Trent Tappan without restrictions and without an \nimpairment rating for his back on 7 October 2020. He contends that despite that release, he \ncontinued to treat. While the claimant remained off work and received TTD benefits beyond \nthe release from Tappan, his work and benefits status during that time was related to his \nshoulder injury. \n The claimant first saw Dr. Bruffett, to whom he was referred for possible surgical \noptions after release from Tappan, on 26 May 2021. That encounter made no mention of \nwork status or any restrictions. Instead, they discussed possible surgery being agreed as a \n“last resort.” No return appointment was set at that time. \n Mr. Hodge next saw Dr. Bruffett on 16 June 2021. The notes indicate that Dr. \nBruffett lifted “any restrictions” and advised Mr. Bruffett to go get a job—something that is \nclearly inconsistent with the notion of him being totally disabled and unable to work for \nmedical reasons. At the 11 August 2021 visit, stipulated by the parties as the MMI date, \nDr. Bruffett made clear that the claimant had “completed the healing phase” for his back \ninjury. He noted, again, that he did not have any physician-directed restrictions and even \nadvised that future visits with his PCP for pain medication would be “under Mr. Hodge’s \n \n6\n See Resp. Ex. No 1 at 1-3. \n\nHODGE- H004773  \n16 \n \nregular insurance and not Workers’ Comp.” This clearly indicates Dr. Bruffett’s \nanticipation\n7\n that the life of Mr. Hodge’s claim had ended. \n That the claimant ultimately decided to undergo a covered surgical procedure and \nwas then entitled TTD benefits does not impart any entitlement to TTD benefits looking \nback to the time when he was first released, having opted against surgery at the earlier \ntime. The record lacks medical findings or other evidence to support finding that the \nclaimant was incapable of working after May of 2021 (and until his surgery in December of \nthat year). Whether he could have been still considered in a healing period between May \nand the 11 August MMI finding is not dispositive. There is insufficient evidence to find that \nhe was in a healing period and incapable of working between May and December of 2021. \nB.  The Claimant Failed to Prove an Underpayment on Permanent Partial Disability \nBenefits. \n \nIn his Contentions, the claimant stated, “his PPD benefits should have started on May \n3, 2022....” The records introduced by the respondents, however, show that he received PPD \nbenefits for periods between 7 June 2021 and 5 December 2021 and then again between 3 \nMay 2022 and 13 March 2023 (with a terminal check issued for the latter period on 9 March \n2023).\n8\n  \nC.  The Claimant Failed to Prove that he was Entitled to an Impairment Rating for a \nCervical Injury. \n \nThe claimant provided scant testimony on a neck injury. The medical records show little \nreference to any diagnostic or treatment efforts associated with neck pain beyond the MRI \nthat showed some evidence of degenerative disc disease. None of the providers attempted to \n \n7\n Here, I refer to Dr. Bruffett’s practical application of his apparent understanding of the \nbasics of our Workers’ Compensation laws and do not intend to expand his statement \nbeyond that. That is, whether Dr. Bruffett failed to consider or is even aware of a \nrespondent’s potential responsibility for ongoing prescriptions related to a compensable \ninjury after a finding of MMI is not of consequence. \n8\n See Resp. Ex. No 1 at 4-6. \n\nHODGE- H004773  \n17 \n \naddress a cervical injury with regard to it being a focus of treatment or rehabilitative \nefforts. Instead, it seems that the claimant, at times, mentioned that he had neck pain, it \nwas considered and then left alone, either as not rising to the level of further clinical effort \nor as not related to the workplace injury and of a degenerative nature. In either case, I do \nnot find evidence supporting a finding of an impairment rating, especially when no provider \nattempted to offer the same. \nD.  The Claimant Failed to Prove that he was Entitled to Wage-Loss Benefits. \nThe wage-loss factor is the extent to which an injured worker’s compensable injury \nnegatively impacts that person’s ability to earn a livelihood. Rice v. Ga.-Pacific Corp., 72 \nArk. App. 148, 35 S.W.3d 328 (2000). “In considering claims for permanent partial disability \nbenefits in excess of the employee's percentage of permanent physical impairment, the \nWorkers' Compensation Commission may take into account, in addition to the percentage of \npermanent physical impairment, such factors as the employee's age, education, work \nexperience, and other matters reasonably expected to affect his or her future earning \ncapacity.” Ark. Code Ann. § 11-9-522(b)(1). A claimant’s motivation to return to work may \nbe considered also. Rice, supra. If a work-related injury combines with a preexisting disease \nor condition or the natural process of aging to cause or prolong the disability or need for \ntreatment, permanent benefits shall be payable for the resultant condition only if the \ncompensable injury is the major cause of the permanent disability or need for treatment. \nArk. Code Ann. § 11-9-102(4)(F)(ii)(a). Major cause means something that is more than fifty \npercent (50%) of the cause. Ark. Code Ann. § 11-9-102(14)(A). \nI do not find that the claimant met his burden for proving that he is entitled to \nwage-loss benefits in excess of the anatomical ratings assigned by his physicians. At the \ntime of the hearing, the claimant was, in fact, working in a field commensurate with his \narea of knowledge and experience. The records from his vocational rehabilitation showed \n\nHODGE- H004773  \n18 \n \nthat he had other work opportunities that he was not interested in because he hoped for a \nhigher wage. He did not provide sufficient evidence that his difficulty in finding work or \nthat any decrease in his ability to earn was causally connected to his compensable injuries \nor resultant disabilities. Mr. Hodge’s concerns about accommodations do not rise above his \nown speculations as to what he may need to be successful in some future job, not actual \nexperience. He did, however, relay at one point to the vocational consultant that he felt his \ndifficulty in finding a satisfactory position was due to his not having a bachelor’s degree.\n9\n \nOn this claim, his evidence simply fails to meet the burden for an entitlement to additional \nbenefits above the anatomical ratings already assigned. \nE.  Attorney’s Fee \nBased on the findings above, the claimant has not proven that he is entitled to an \nattorney’s fee. \n \nV.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis denied and dismissed. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE  \n  \n \n9\n See Cl. Ex. No 1 at 319.","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H004773 DONALD P. HODGE, EMPLOYEE CLAIMANT DEPT. OF HUMAN SERVICES, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT OPINION FILED 19 MARCH 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law J...","fetched_at":"2026-05-19T22:56:39.038Z","links":{"html":"/opinions/alj-H004773-2024-03-19","pdf":"https://labor.arkansas.gov/wp-content/uploads/HODGE_DONALD_H004773_20240319.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}