{"id":"alj-H005827-2025-05-20","awcc_number":"H005827","decision_date":"2025-05-20","opinion_type":"alj","claimant_name":"Earl Glass","employer_name":"Ark. Dept. Of Correction","title":"GLASS VS. ARK. DEPT. OF CORRECTION AWCC# H005827 & H106715 May 20, 2025","outcome":"granted","outcome_keywords":["granted:8"],"injury_keywords":["hip","back","knee","shoulder","lumbar","fracture","sprain"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/GLASS_EARL_H005827_H106715_20250520.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GLASS_EARL_H005827_H106715_20250520.pdf","text_length":40985,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM Nos H005827 & H106715 \n \nEARL GLASS, EMPLOYEE         CLAIMANT \n \nvs. \n \nARK. DEPT. OF CORRECTION, EMPLOYER         RESPONDENT \n     \nPUBLIC EMPLOYEE CLAIMS DIVISION, TPA         RESPONDENT \n \n \n \nOPINION FILED 20 MAY 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 12 February 2025 in Little Rock, Arkansas. \n \nThe Caldwell Law Firm, Mr. Andy L. Caldwell, appeared for the claimant. \n \nThe Arkansas Insurance Department, Public Employee Claims Division, Mr. Charles H. \nMcLemore, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A Prehearing Order was filed on 15 October 2024 and admitted to the hearing record \nwithout objection as Commission’s Exhibit No 1. Consistent with that Order, the parties’ \nprehearing filings, and extensive discussions at the outset of the hearing, the parties agreed \nto the following: \nSTIPULATIONS \n \n 1. The Commission has jurisdiction over this claim. \n \n2.  The employer/employee/third party administrator relationship existed at all \nrelevant times, including on 5 August 2020, when the claimant sustained \naccepted compensable injuries to his right hip and low back associated with \nClaim H005827. The same existed on 2 August 2021, when the claimant \nsustained accepted compensable injuries to his right hip, low back, right \nknee, and bilateral shoulders associated with Claim H106715. \n  \n3. With respect to Claim No H005827, the claimant earned an average weekly \nwage of $717.68, which would entitle him to compensation rates of $478 and \n\nGLASS- H005827 & H106715 \n2 \n \n$359 per week for temporary total disability (TTD) benefits and permanent \npartial disability (PPD) benefits, respectively. \n \n4. According to the respondents, with respect to Claim No H106715, the \nclaimant earned an average weekly wage of $616.54, which would entitle him \nto compensation rates of $411 and $308 per week for TTD benefits and PPD \nbenefits, respectively. The claimant agrees that benefits were paid on this \nclaim consistent with these amounts; but he disagrees with the accuracy of \nthe average weekly wage calculation for this claim. \n \n5. The claimant reached maximum medical improvement (MMI) with regard to \nhis accepted compensable right hip injuries on 14 March 2023 and was \nassigned a fifteen percent (15%) impairment rating to the whole body \nassociated with those injuries. The respondents accepted and paid benefits on \nthat impairment rating. \n \nISSUES \n \n1. Whether the average weekly wage was miscalculated for the purpose of \nbenefits associated with the claimant’s second workplace incident and \ninjuries.   \n \n2. Whether the claimant is entitled to PPD benefits associated with his accepted \ncompensable low back injuries. \n \n3. Whether the claimant is entitled to additional medical treatment with Pain \nTreatment Centers of America for his accepted compensable low back, right \nknee, and bilateral shoulder injuries. \n \n4. Whether the claimant is entitled to a controverted attorney’s fee related to \nindemnity benefits already provided in relation to his compensable right hip \ninjuries. \n \n5. Whether the claimant’s alleged left hip injury is a compensable consequence \nof his compensable right hip injuries. \n \n6. Whether the claimant is entitled to permanent and total disability benefits \nor, in the alternative, wage-loss benefits associated with his compensable \ninjuries. He claims that this entitlement relates to either or both claims. \n \n7. Whether the claimant is entitled to an attorney’s fee on the additional \nindemnity benefits being sought. \n \n All other issues are reserved. \n \n \n \n \n \n\nGLASS- H005827 & H106715 \n3 \n \nCONTENTIONS \n \n The Prehearing Order incorporated the parties’ contentions by reference. The \nclaimant’s contentions were subsequently amended as follows: \n The claimant’s average weekly wage (AWW) will be \ndetermined by the contract of hire, wage records, and Arkansas \nlaw. Upon information and belief, the respondents calculated \nthe AWW and compensation rates resulting in an \nunderpayment of temporary total and permanent partial \ndisability benefits to the claimant. Respondents used the wages \npaid while the claimant was not back at full duty from his \ninjuries sustained in Claim No H005827 in calculating the \nAWW for Claim No H106715. \n \n The claimant sustained admittedly compensable \ninjuries to his right leg, right hip, and back on or about 5 \nAugust 2020 (H005827). The claimant also sustained \nadmittedly compensable injuries to his right hip, right knee, \nright shoulder, left shoulder, and low back on 2 August 2021 \n(H106715). The claimant treated with Dr. Vargas, who \ndiagnosed the claimant with a fractured hip and recommended \na total hip replacement. The respondents initially denied the \nrecommendation of Dr. Vargas and refused to authorize the \nsurgery consult as well as the physical therapy ordered. \nRespondents finally authorized the surgery after [counsel] \nrequested a hearing. The claimant contends the respondents \ncontroverted the additional benefits for the hip and that his \nattorney is entitled to an attorney’s fee on any indemnity paid \nafter the controversion, including the impairment rating and \nany additional indemnity owed. The claimant was placed at \nMMI for his right hip on or about 14 March 2023, and he was \nassigned a fifteen percent (15%) rating to the body as a whole. \nRespondents have paid the impairment rating; but the \nrespondents have not paid any attorney’s fees, and the rating \nwas paid at the incorrect PPD rate. \n \n The claimant’s right hip injury caused the claimant to \nfavor and rely upon his left hip. The claimant had to put all of \nhis weight on his left hip while he was recovering from the \nright hip injury. The claimant’s left hip was asymptomatic \nprior to his compensable right hip injuries. As a compensable \nconsequence of the claimant’s right hip injuries, the claimant’s \nleft hip has become symptomatic and treatment for the same is \nreasonable and necessary. The claimant is entitled to medical \ntreatment for the same. \n \n\nGLASS- H005827 & H106715 \n4 \n \n Dr. Vargas also treated the claimant’s back injury. The \nclaimant was asymptomatic prior to his compensable back \ninjuries. The claimant had documented muscle spasms and a \nleft foraminal disc protrusion at L4-5 that contacted and \ndisplaced the L4 nerve root. The claimant is entitled to \npermanent partial disability for the lumbar injury. The \nclaimant’s treatment with Pain Treatment Centers of America \nis reasonable and necessary medical treatment for his lumbar \nspine injury. \n \n The claimant has not been able to return to work due to \nhis compensable injuries, and he contends that he is \npermanently and totally disabled. Pleading in the alternative, \nin the event the Commission finds that the claimant is not \npermanently and totally disabled, the claimant contends that \nhe is entitled to wage-loss benefits. \n \n The claimant’s attorney is entitled to an attorney’s fee \non all controverted benefits, and all other issues are reserved. \n \n The respondents contend the following: \n ... that the claimant reported having an injury when he \nslipped at work on 5 August 2020 (H005827), which was \naccepted as compensable by the respondents. The claimant was \nprovided medical treatment for his low back and groin, treated \nconservatively, and paid TTD while in his healing period and \nunable to work. The claimant was released to full duty with a \nzero percent (0%) permanent impairment rating by Dr. \nStephen Paulus in his report of 1 October 2020. The claimant \nreturned to work for the respondent-employer. \n \n The respondent contends that he claimant reported \nhaving another injury when he slipped on 2 August 2021 \n(H106715), which was accepted as compensable by the \nrespondents. The claimant complained of injuries to his left \nmiddle finger, right knee, low back, and [bilateral] shoulders. \nThe claimant has been, and continues to be, provided medical \ntreatment by the respondent. \n \n The claimant’s medical treatment has included \nconservative treatment with Dr. Victor Vargas, including \ninjections and physical therapy, and a lumbar MRI. The \nrespondent also sent the claimant to Dr. James Tucker and \n[APRN] Christopher Vinson within the same clinic, who \nevaluated the claimant and recommended surgery for the \nclaimant’s hip fracture and referred him to Dr. Adam Smith \nwho performed the claimant’s right hip replacement surgery on \n17 November 2021. \n\nGLASS- H005827 & H106715 \n5 \n \n \n The claimant was released by Dr. Adam Smith at MMI \non 14 March 2023, with a fifteen percent (15%) permanent \nimpairment to the body as a whole for his [right] hip. \nRespondent has paid PPD benefits to the claimant for this \nrating. The claimant was provided with an injection of his left \nhip on 20 June 2023 and did not seek further treatment for his \nleft hip. Respondent has authorized a return visit to Dr. Adam \nSmith on 5 September 2024 to evaluate the claimant’s hips. \nRespondent is not responsible for any unauthorized medical \ntreatment the claimant has incurred. \n \n The claimant had been released by Dr. Victor Vargas at \nMMI on 28 April 2022, and on 12 July 2023, Dr. Vargas \nassigned the claimant a zero percent (0%) permanent \nimpairment rating for his lumbar spine, with no work \nrestrictions. \n \n The claimant was offered vocational rehabilitation \ncounseling, which he refused at his deposition, but he later \nagreed to participate. \n \n The respondent contends that the claimant cannot \nestablish that he is unable to work as a result of his \ncompensable injuries or that he is entitled to benefits under \nSection 11-9-505(a) [this contention was withdrawn at the \nhearing]... \n \n Respondent has paid benefits to the claimant for each \nclaim with compensation computed on his average weekly wage \nearned at the time of the accident(s). \n \n The respondent reserves the right to raise additional \ncontentions, or to modify those stated herein, pending the \ncompletion of discovery.  \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witnesses, observing their demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n2. The stipulations as set forth above are accepted. \n\nGLASS- H005827 & H106715 \n6 \n \n3. The claimant proved by a preponderance of the evidence that he is owed for \nunderpayment(s) related to a miscalculated average weekly wage associated \nwith his second accident (Claim H106715). \n \n4. The claimant failed to prove by a preponderance of the evidence that he is \nentitled to PPD benefits associated with his low back injuries. \n \n5. The claimant failed to prove by a preponderance of the evidence that he is \nentitled to benefits associated with the unauthorized medical treatment he \nsought through the Pain Treatment Centers of America. \n \n6. The claimant failed to prove by a preponderance of the evidence that the \nrespondents controverted the benefits he received in relation to his \ncompensable right hip injuries. \n \n7. The claimant proved by a preponderance of the evidence that his left hip \ninjury is a compensable consequence of his accepted compensable right hip \ninjuries. \n \n8. The claimant failed to prove by a preponderance of the evidence that he is \npermanently and totally disabled; but he proved by a preponderance of the \nevidence that he is entitled to a wage-loss benefit in the amount of twenty-\nfive percent (25%) over and above his fifteen percent (15%) whole-body \nimpairment rating for his accepted compensable right hip injuries. \n \n9. The claimant has proven by a preponderance of the evidence that he is \nentitled to an attorney’s fee on the indemnity benefits awarded in this \nopinion. \n \nSUMMARY OF THE EVIDENCE \n \n The record consists of the hearing transcript and two volumes of exhibits. The \nclaimant and his wife Isabella Amanda Glass testified at the hearing. Vocational \nconsultants Cecilia Ann Brunson and Keondra Hampton also testified. In addition to \nCommission’s Exhibit No 1, noted above, the following exhibits were entered into the record: \nClaimant’s Exhibit No 1 (four index pages and 440 pages of medical records); Claimant’s \nExhibit No 2 (two index pages and 111 pages of non-medical records); Claimant’s Exhibit No \n3 (the claimant’s amended prehearing information, which consists of five pages and \nrepresents a date of service of 4 February 2025); Respondents’ Exhibit No 1 (four index \npages and 172 pages of medical records); Respondents' Exhibit No 2 (two index pages and 50 \n\nGLASS- H005827 & H106715 \n7 \n \npages of non-medical records); Respondents' Exhibit No 3 (one index page and 9 pages of \nsupplemental records); and Respondents' Exhibit No 4 (the respondents’ prehearing \ninformation, which consists of four pages and represents a date of service of 29 August \n2024). \n Additionally, both parties filed post-hearing briefs on 17 March 2025. I have blue-\nbacked those briefs to this opinion, and copies of the same will be served along with this \nopinion, consistent with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 Ark. App. \nLEXIS 549. \nADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). \nA claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness, \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nThe claimant is sixty-six years of age with a bachelor’s degree in psychology and a \nmaster’s degree in clinical psychology. At the time relevant to these claims, he was working \nfor the respondents as a mental health counselor for inmates at multiple facilities within \nthe Arkansas Department of Correction. The claims at issue relate to two separate \n\nGLASS- H005827 & H106715 \n8 \n \nworkplace incidents—both slip-and-falls. The first occurred on 5 August 2020, when he was \nwalking the prison halls doing his treatment rounds. The second occurred nearly a year \nlater, on 2 August 2021, when he was setting up a rolling computer for virtual therapy \nvisits.\n1\n The claimant has not worked since the second date of injury. The respondents \naccepted both claims and began providing benefits. The claimant has requested additional \nbenefits, however, and those claims were the subjects of the hearing. \nA. THE AVERAGE WEEKLY WAGE RATE   \nThe claimant contends that the respondents undercalculated his average weekly \nwage for the purpose of benefits associated with Claim No H106715. He testified that he \nreceived a salary increase shortly before his second accident and argues that the \nrespondents’ calculations inappropriately included TTD benefits received in relation to \nClaim No H005827 instead of the claimant’s actual wage rate for those weeks in which \nbenefits were paid. \nArkansas Code Annotated § 11-9-705(a)(3) (Repl. 2012) provides that \n“[c]ompensation shall be computed on the average weekly wage earned by the employee \nunder the contract of hire in force at the time of the accident and in no case shall be \ncomputed on less than a full-time workweek in the employment.” \n The wage records submitted by the claimant for the end of July 2020 show the \nclaimant was earning a bi-weekly wage of $1,435.71. [Cl. Ex. 2 at 52.] The parties \nstipulated that the benefits paid on the claimant’s 5 August 2020 injuries were based on an \naverage weekly wage of $717.68, which is commensurate with the bi-weekly amount noted \nabove. \n \n1\n According to the medical records, it was discovered during treatment for the second fall \nthat a fracture in the claimant’s right hip was missed during the treatment associated with \nthe first fall. The right hip replacement that he claimant eventually underwent was, thus, \nassociated with Claim No H005827. \n\nGLASS- H005827 & H106715 \n9 \n \n The wage records submitted by the claimant for the end of July 2021 show that the \nclaimant was earning a bi-weekly wage of approximately $1,478.76. [Cl. Ex. No 2 at 58.] His \nwages for the months preceding July were consistent with those associated with his first \naccident. The parties stipulated, however, that the benefits paid on the claimant’s August \n2021 injuries were based on an average weekly wage of $616.54, a considerable decline from \nhis previous year’s wage rate that is not consistent with the increased salary reflected in \nhis last two checks for July of 2021. \n The evidence shows that the respondents miscalculated the claimant’s average \nweekly wage for the second claim by including TTD benefits paid in some periods into the \nwage calculation.  His full-time bi-weekly pay rate of $1,435.71 for 24 pay periods and \n$1,478.76 for two pay periods make the applicable average weekly wage $719.34. The \npreponderance of the evidence establishes that he is entitled to indemnity benefits \nassociated with his second accident (Claim No H106715) based on this amount, and that the \nrespondents are thus responsible for any underpayments on benefits that were not \nconsistent with that rate. \nB. THE CLAIMANT IS NOT ENTITLED TO PPD BENEFITS FOR HIS LOW \nBACK INJURIES. \n \nPermanent impairment is any permanent functional or anatomical loss remaining \nafter the healing period has been reached. Johnson v. General Dynamics, 46 Ark. App. 188, \n878 S.W.2d 411 (1994). Any determination of the existence or extent of physical \nimpairment shall be supported by objective and measurable physical findings. Ark. Code \nAnn. § 11-9-704(c)(1). Objective findings are those findings which cannot come under the \nvoluntary control of the patient. Id. § 11-9-102(16)(A)(i). Medical opinions \naddressing impairment must be stated within a reasonable degree of medical certainty. Id. \n§ 11-9-102(16)(B). Permanent benefits shall be awarded only upon a determination that the \n\nGLASS- H005827 & H106715 \n10 \n \ncompensable injury was the major cause of the disability or impairment. Id. § 11-9-\n102(f)(ii)(a). \"Major cause\" means more than fifty percent (50%) of the cause. Id. § 11-9-\n102(14). \nThe claimant experienced low back pain after his initial accident on 5 August 2020. \nAn X-ray report from 9 August 2020 revealed “degenerative changes in the lumbar spine,” \nbut “no evidence of acute fracture or dislocation.” [Cl. Ex. No 1 at 15.] Dr. Stephen Paulus \nsaw the claimant on 8 September 2020. He assessed “low back pain” and “degeneration of \nlumbar intervertebral disc” and returned the claimant to work at light duty. [Cl. Ex. No 1 at \n38.] On 1 October 2020, Dr. Paulus noted that he would release the claimant back to full \nduty at MMI with a zero percent (0%) impairment rating the following week. \nAfter the claimant’s second accident, he presented to MedExpress on 9 August 2021, \nwhere he was assessed with a lumbar sprain and muscle spasm in his back. [Cl. Ex. No 1 at \n57.] He was then seen at OrthoArkansas on 19 August 2021 by Nurse Practitioner \nChristopher Vinson. X-ray imaging revealed, “no change from the last X-rays taken of his \nlumbar spine taken on September 8, 2020. There are degenerative changes throughout the \nlumbar spine as well.” [Cl. Ex. No 1 at 75.] An MRI was ordered, and the claimant was \nreferred to Dr. Victor Vargas for further consultation. \nDr. Vargas noted on 31 August 2021 that the MRI showed “left foraminal disc \nprotrusion at L4-5 that appears contacting and displacing the exiting left L4 nerve root.” \n[Cl. Ex. No 1 at 86.] The imaging showed a stress reaction of the sacrum and some potential \nsigns related to a hematological disorder, possibly multiple myeloma or another metastatic \ndisease or blood packing disorder. [Cl. Ex. No 1 at 231.] But in his lengthy assessment and \nplanning note from that day, Dr. Vargas states that the claimant has “back pain with \ndegenerative changes” and “[d]efinitely no acute events in the lumbar spine.” [Cl. Ex. No 1 \nat 87.]  \n\nGLASS- H005827 & H106715 \n11 \n \nOn 28 April 2022, Dr. Vargas stated the following: \nI am considering with a reasonable degree of medical certainty that the \npatient has reached max medical improvement and can be released.  \nNo further treatment is necessary. \nPatient has had extensive work-up and treatment for his symptomology \nlower back pain.  \nThe patient [more likely than not]\n2\n has a source of his back pain originated at \nmultilevel degenerative disc disease in the lumbar spine and also has \nunderlying hematological process mostly that needs to be treated and \nfollowed by different specialty and in coordination with a primary care \nphysician. \nIn terms of the work related injury the patient can work with no restrictions. \n[sic] \n \n[Cl. Ex. No 1 at 243.] In an addendum to that note, he assigned the claimant a “0% \npermanent impairment in regards to lower back pain.”  \n The claimant eventually presented to Pain Treatment Centers of America (PTCA) \nfor his back pain, where his pain was suggested as being chronic and likely to last for the \nremainder of the claimant’s life. He argues that Dr. Vargas’ opinion should be disregarded \nand that the permanent nature of PTCA’s assessment favors the assignment of a \npermanent impairment rating. I disagree. \n Degenerative changes were noted in the X-ray imaging after the claimant’s initial \naccident on 5 August 2020. Subsequent X-ray imaging showed the same after the 2 August \n2021 accident. The Commission is authorized to accept or reject a medical opinion and is \nauthorized to determine its medical soundness and probative value. Poulan Weed Eater v. \nMarshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). Dr. Vargas worked through various \npotential causes for the claimant’s back pain and opined that it was most likely related to \ndegenerative disc disease and/or a hematological condition that was not related to the \n \n2\n The actual text appearing in the note reads, “The patient most likely than no has a source \nof his back pain originated at multilevel....” The note clearly states that the text “was \ngenerated with voice recognition software.” I have bracketed what I reasonably believe was \nmeant in that portion of the note where the transcription is not clear. \n\nGLASS- H005827 & H106715 \n12 \n \nclaimant’s work injuries. I credit his opinion that the claimant was entitled to a zero \npercent (0%) impairment rating associated with his compensable back injuries. The \nclaimant has, thus, failed to prove by a preponderance of the evidence that he is entitled to \nPPD benefits associated with his compensable low back injuries. \nC. THE RESPONDENTS ARE NOT LIABLE FOR THE CLAIMANT’S \nUNAUTHORIZED TREATMENT WITH THE PAIN TREATMENT \nCENTERS OF AMERICA. \n \n The claimant seeks benefits associated with the medical treatment he received from \nPTCA. That treatment began on 17 October 2022, when the claimant was seen for low back \npain. Upon subsequent presentations to PTCA, the claimant also made complaints of hip \npain and shoulder pain. He does not dispute, however, that the treatment he sought for the \nsame was unauthorized.  \nAn employer shall promptly provide for an injured employee such medical treatment \nas may be reasonably necessary in connection with the injury received by the employee. \nArk. Code Ann. § 11-9-508(a). The employer has the right to select the initial treating \nphysician. Id. § 11-9-514(a)(3)(A)(i). However, an employee may request a one-time change \nof physician. Id. § 11-9-514(a)(2)(A), (a)(3)(A)(ii), (iii). When a claimant seeks a change of \nphysician, he must petition the Commission for approval. Stevenson v. Tyson Foods, Inc., 70 \nArk. App. 265, 270, 19 S.W. 3d 36, 39 (2000). Treatment or services furnished or prescribed \nby any physician other than the one selected according to the change of physician rules, \nexcept emergency treatment, shall be at the claimant's expense. Id. § 11-9-514(b). \n The claimant testified that he believed that he was referred to PTCA by one of the \nphysicians at his own primary care clinic—and not from his authorized treating physician: \nQ:  Is that some place you decided to go to get some treatment? \nA:  I think I was referred there. \nQ:  By who? \nA:  I think it was UAMS Medical Clinic. \nQ:  Is that where your family doctor is? \n\nGLASS- H005827 & H106715 \n13 \n \nA:  Yes. \n. . .  \nQ:  And it was one of those doctors who referred you to the Pain Treatment \nCenters of America? \nA:  Yes, sir. Uh-huh. \nQ:  And that’s where you’ve been getting your pain medication? \nA: Yes, sir. That’s where the medication is coming from. \nQ:  Okay. So that’s not some place that Public Employee Claims sent you? \nYou went there to get your treatment? \nA:  Right. \n \n[TR at 95-97.] \n The record includes two Form AR-Ns, with the front and back side of each form \nevidencing the claimant’s dated signature. The Form AR-N associated with his 5 August \n2020 accident was signed on 13 August 2020 [Resp. Ex. No 2 at 3-4]; and the form \nassociated with his 2 August 2021 accident was signed on 26 August 2021 [Resp. Ex. No 2 at \n16-17]. After an employee has received a Form AR-N from his employer, subsequent \nunauthorized treatment is not the employer’s responsibility. Ark. Code Ann. § 11-9-\n514(c)(3) (Repl. 2012); Tempworks Mgmt. Servs. v. Jaynes, 2023 Ark. App. 147, 662 S.W.3d \n280.  \n Having been furnished with notice of the physician change rules via a Form AR-N \nfor each of his claims, the claimant was bound by those rules. He did not, however, comply \nwith those rules before seeking treatment from PTCA. Accordingly, the respondents are not \nliable for the unauthorized treatment provided to the claimant by PTCA. \nD. THE CLAIMANT HAS NOT PROVEN CONTROVERSION OF BENEFITS \nASSOCIATED WITH HIS RIGHT HIP INJURIES. \n \nThe claimant contended in his amended prehearing information that the \nrespondents were liable for controverting benefits on the claimant’s accepted right hip \ninjuries by way of some delay in authorizing the total right hip replacement that was \nperformed 17 November 2021. No evidence was introduced in furtherance of that argument. \nInstead, the claimant suggested in his post-hearing brief that the Commission take notice \n\nGLASS- H005827 & H106715 \n14 \n \nof the timeline of past filings on his claims. In the absence of any record evidence in support \nof the alleged controversion of benefits, that claim must fail. \nE. THE CLAIMANT’S LEFT HIP INJURY WAS A COMPENSABLE \nCONSEQUENCE OF HIS COMPENSABLE RIGHT HIP INJURIES. \n \nThe claimant asserts that his left hip became problematic as a result of his \ncompensable right hip injuries and/or his right hip replacement in November of 2021. At a \nfollow-up visit for his right hip on 14 March 2023, the claimant reported his right hip was \nmuch better, but his left hip was becoming a hinderance with regard to discontinuing the \nuse of a walker. [Cl. Ex. No 1 at 326.] Dr. Smith nonetheless placed him at MMI with no \nrestrictions and assigned a fifteen percent (15%) whole-body rating for his right hip that \nday. He authored a letter stating the same on 17 April 2023. [Cl. Ex. No 1 at 351.] \nOn 16 June 2023, the claimant was diagnosed with osteoporosis. [Cl. Ex. No 1 at \n389.] On 20 June 2023, Dr. Smith noted that the claimant was doing well with his right hip \nreplacement, but that he was having increasing trouble with left hip osteoarthritis. A left \nhip injection was provided that day. The claimant returned to Dr. Smith on 17 September \n2024, when he was diagnosed with a nondisplaced subtrochanteric left femur fracture. \n[Resp. Ex. No 1 at 168.] A cephalomedullary nail procedure was recommended to six the \nfracture. A nurse case manager for the respondents inquired of Dr. Smith in a form letter \nas to whether that injury was related to his right hip injuries. The questions and answers \nreturned were: \nQ:  In your opinion, within a reasonable degree of certainty, is the need for \nthe proposed IM hip nailing for the left non-displaced fracture greater than \n51% related to the work injury of 08//05/20? \nA:  No. \nQ:  Can you state, within a reasonable degree of medical certainty, the \nreported left hip symptoms and pathology are the direct result of the 08/05/20 \nwork injury or to pre-existing conditions? \nA:  No. \n \n[Resp. Ex. No 1 at 171.]  \n\nGLASS- H005827 & H106715 \n15 \n \nThese questions, however, are not reflective of the standard that is applied when \nconsidering whether an injury is a compensable consequence. The present question is not \nwhether the left hip injury was a “direct result” of the compensable injury itself—and \ncertainly not whether the former was a “major cause” of the latter. When a claimant suffers \na compensable injury, every natural consequence of that injury is also compensable. Hubley \nv. Best Western Governor’s Inn, 52, Ark. App. 226, 916 S.W.2d 143 (1996). The inquiry turns \non whether there is a causal connection between the two occurrences. Jeter v. B.R. McGinty \nMechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998). In Booneville Hum. Dev. Ctr. v. Foster, \n2024 Ark. App. 618, our Court of Appeals recently explained: \nArkansas Code Annotated section 11-9-508(a)(1) (Supp. 2023) requires an \nemployer to provide an injured employee such medical services as may be \nreasonably necessary in connection with the injury received by the employee. \nWhen the primary injury is shown to have arisen out of and in the course of \nemployment, the employer is responsible for any natural consequence that \nflows from that injury. Nichols v. Omaha Sch. Dist., 2010 Ark. App. 194, at 5, \n374 S.W.3d 148, 151. However, for this rule to apply, the basic test is whether \nthere is a causal connection between the injury and the consequences of the \ninjury. Id., 374 S.W.3d at 151. The burden is on the employee to establish the \nnecessary causal connection. Id. at 5-6, 374 S.W.3d at 151. The determination \nof whether a causal connection exists between two episodes is a question of \nfact for the Commission. Ingram v. Tyson Mexican Original, 2015 Ark. App. \n519, at 6. \n \n The claimant testified credibly that he did not have a history of left hip pain before \nhis compensable right hip injuries: \nQ:  And so while you were getting treatment and recovering after your \nsurgery for the total hip, were you having to put more pressure on your left \nhip? \nA:  Yes. \nQ:  Before these two work injuries, were you having any problems with that \nleft hip? \nA:  No, sir. \nQ:  Had you been to a doctor for your left hip? \nA:  No, sir. \nQ:  Since these injuries and since having to put this added pressure on [your] \nleft hip, has it started to become problematic for you? \nA:  Very much so, sir. \n\nGLASS- H005827 & H106715 \n16 \n \nQ:  And it started to give you discomfort? \nA:  Discomfort, yes. \nQ:  And then, you started getting treatment for it? \nA:  Yes, sir. \n \n[TR at 109-110.] \n Dr. Smith managed the care of the claimant’s hip replacement and answered the \nquestions as they were written. I assign little evidentiary value to his responses to the letter \nin this circumstance. See Poulan, supra. Rather, I find that the claimant proved by a \npreponderance of the evidence that a causal connection between his compensable right hip \ninjuries and the eventual injury to his left hip.  \nThe claimant denied any history of left hip problems prior to his first work accident. \nThe record is clear that the claimant suffered from an untreated right hip fracture for \nnearly a year before it was found on imaging related to his 2 August 2021 fall. A report \nfrom the respondents’ nurse case manager in October of 2021 noted that the claimant did \nnot fully recover from his first accident and had walked with a limp since. [Cl. Ex. No 1 at \n124.] A note from a 20 October 2022 visit (after his right hip replacement) with Dr. Smith \nadvises the claimant that “it is going to take him significantly longer to get over his injury \nas he went 15 months prior to getting surgery. This is going to cause him significant \natrophy and trouble.” [Cl. Ex. No 1 at 284.] And the claimant began regularly reporting left \nlower extremity pain in physical therapy appointments at least as early as 9 August 2022. \n[Cl. Ex. No 1 at 259.] \nGiven the delay in treatment of the claimant’s compensable right hip injuries, the \nprolonged recovery course for that hip, and his years of reporting an altered gait, it \nnaturally follows that the claimant’s daily reliance on and overuse of his left hip resulted in \nan injury to that hip. Accordingly, I find that he has met his burden in proving that his left \nhip injury is a compensable consequence of his compensable right hip injuries. \n\nGLASS- H005827 & H106715 \n17 \n \nF. THE CLAIMANT IS NOT ENTITLED TO PERMANENT AND TOTAL \nDISABILITY BENEFITS; BUT HE IS ENTITLED TO A 25% WAGE-LOSS \nBENEFIT IN EXCESS OF HIS PERMANENT IMPAIRMENT RATING. \n \nIt is not disputed that the respondents have accepted the fifteen percent (15%) whole \nbody impairment rating associated with the claimant’s accepted compensable right hip \ninjuries. The claimant now seeks permanent and total disability benefits associated with \neither or both of his claims. Under Arkansas law, “permanent total disability” means an \n“inability, because of a compensable injury or occupational disease, to earn any meaningful \nwages in the same or other employment.” A.C.A. § 11-9-519(e)(1). The burden of proof is on \nthe employee to prove his inability to earn any meaningful wages in the same or other \nemployment. Id. § 11-9-519(e)(2). Permanent total disability must be determined in \naccordance with the facts. Id. § 11-9-519(c). \nWhen a claimant has been assigned an anatomical impairment rating to the body as \na whole, the Commission has the authority to increase the disability rating, and it can find \na claimant totally and permanently disabled based upon wage-loss factors. Milton v. K-Tops \nPlastic Mfg. Co., 2012 Ark. App. 175, 392 S.W.3d 364. Those factors include the claimant’s \nage, education, work experience, and other matters reasonably expected to affect his future \nearning capacity. A.C.A. § 11-9-522(b)(1). A claimant’s motivation to return to work may \nalso be considered. Milton, supra. \nThe law provides: \n(a)  Permanent benefits shall be awarded only upon a determination \nthat the compensable injury was the major cause of the disability or \nimpairment. \n \n(b)  If any compensable injury combines with a preexisting disease or \ncondition or the natural process of aging to cause or prolong disability \nor a need for treatment, permanent benefits shall be payable for the \nresultant condition only if the compensable injury is the major cause \nof the permanent disability or need for treatment. \n \n\nGLASS- H005827 & H106715 \n18 \n \nA.C.A. § 11-9-102(4)(F)(ii). A “major cause” is more than fifty percent (50%) of the cause and \nmust be established by a preponderance of the evidence. A.C.A. § 11-9-102(14). \n The claimant was a credible witness. But he has failed to prove by a preponderance \nof the evidence that he is permanently and totally disabled. He was released with a zero \npercent (0%) rating and no restrictions for his compensable back injuries. His release to \nreturn to work after treatment for his compensable right hip injuries was “as tolerated,” but \nwithout restrictions. The claimant has a bachelor’s and master’s degree in the psychology \nfield and extensive experience in providing mental health counseling services or \ncoordinating care within the healthcare system. He also has academic administrative \nexperience from his time running a charter school in Pine Bluff, Arkansas. \nBoth of the vocational experts who testified opined that the claimant could work in a \nsedentary job classification, and multiple job openings at competitive salaries were found \nduring the vocational rehabilitation job search process. They acknowledged that his \nphysical limitations could require accommodations from his employers; but they generally \nfelt that given his education, his experience, and his line of work, he would be able to \nparticipate in the workforce in a meaningful way. While he testified that he had not \nconsidered working remotely, the claimant added that he was familiar with virtual \nmeetings over Zoom. Indeed, his second accident occurred while he was setting up for \nfacilitating remote therapy sessions for his inmate clients. He would, however, not \nnecessarily be familiar with the clinical software programs and electronic health records \nused by potential employers. \nThe claimant testified that he intended to work until he was 70 years old, but he \nnow experiences some significant mobility issues. He stated that he attempted to explore \nsome job postings that were provided through vocational rehabilitation, but the internet \nlinks he received would not work when he tried to access the job postings.  \n\nGLASS- H005827 & H106715 \n19 \n \nThe claimant testified that he can drive, but that getting to and from the car takes a \nlot of time and effort. Respondents’ counsel complimented the claimant’s professional \nappearance at the hearing; but the claimant explained that he required assistance in \ngetting himself ready for the day. He testified that he benefits from a special chair at home \nthat is meant to provide ease of access and comfort to people with hip injuries. It is not \nclear if such a chair would be an available accommodation if he were to return to an in-\noffice setting. According to the testimony, some accommodations may be necessary \nregarding the claimant’s medication regimen and the drowsiness that can occur from some \nof his medication. \nI do not find the claimant to be especially motivated to return to work. But I believe \nthat he was sincere in stating that the transition from a lifetime of working to feeling \nunable to work has been unanticipated and difficult for him. It was unclear from the \ntestimony the extent that the limitations on communicating with him as a person \nrepresented by counsel hindered his ability to actively engage in the job seeking process. \nThere is no exact formula for determining a claimant’s wage loss. Hixon v. Baptist Health, \n2010 Ark. App. 413, 375 S.W.3d 690. To be entitled to any wage-loss disability in excess of \nan impairment rating, the claimant must prove by a preponderance of the evidence that he \nsustained a permanent physical impairment as the result of a compensable injury. Wal-\nMart Stores, Inc. v. Connell, 340 Ark. 373, 326 S.W.3d 415. Here, the claimant has a \nstipulated accepted permanent impairment based on his accepted compensable right hip \ninjuries. Based on the foregoing evidence, I find that the claimant proved by a \npreponderance of the evidence that he is entitled to a wage-loss benefit of twenty-five \npercent (25%) in excess of that impairment. In so doing, I find his stipulated compensable \nright hip injuries to be the major cause of his wage loss. \n \n\nGLASS- H005827 & H106715 \n20 \n \nG. THE CLAIMANT IS ENTITLED TO AN ATTORNEY’S FEE. \n The respondents have controverted the claimant’s entitlement to the indemnity \nbenefits awarded in this Opinion. They are, therefore, liable for the allowable fees \nassociated with this litigation. The claimant is entitled to an attorney’s fee under Ark. Code \nAnn. § 11-9-715 on the indemnity benefits awarded in and consistent with this Opinion. \nCONCLUSION AND AWARD \n The claimant has proven his entitlement to the indemnity benefits outlined above. \nThe respondents are directed to provide benefits accordingly. All accrued amounts shall be \npaid in a lump sum without discount, and this award shall earn interest at the legal rate \nuntil paid. Ark. Code Ann. 11-9-809. See Couch v. First State Bank of Newport, 49 Ark. App. \n102, 898 S.W.2d 57 (1995). \n The claimant’s attorney is entitled to a twenty-five percent (25%) fee on the benefits \nawarded herein. One-half (1/2) of the fee is to be paid by the claimant, and one-half (1/2) of \nthe fee is to be paid by the respondents, consistent with A.C.A. §11-9-715. See Death & \nPermanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2012). \n IT IS SO ORDERED. \n       ______________________________________ \n       JayO. Howe \n       Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM Nos H005827 & H106715 EARL GLASS, EMPLOYEE CLAIMANT vs. ARK. DEPT. OF CORRECTION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT OPINION FILED 20 MAY 2025 Heard before Arkansas Workers’ Compensation Commission Administrative Law Judge JayO....","fetched_at":"2026-05-19T22:40:56.678Z","links":{"html":"/opinions/alj-H005827-2025-05-20","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/GLASS_EARL_H005827_H106715_20250520.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}