{"id":"alj-H006469-2023-08-25","awcc_number":"H006469","decision_date":"2023-08-25","opinion_type":"alj","claimant_name":"James Brown","employer_name":"L & R Distributors, Inc","title":"BROWN VS. L & R DISTRIBUTORS, INC. AWCC# H006469 AUGUST 25, 2023","outcome":"granted","outcome_keywords":["dismissed:1","granted:3","denied:1"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//BROWN_JAMES_H006469_20230825.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BROWN_JAMES_H006469_20230825.pdf","text_length":30426,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H006469 \n \nJAMES W. BROWN, EMPLOYEE       CLAIMANT \n \nL & R DISTRIBUTORS, INC., EMPLOYER          RESPONDENT \n \nLIBERTY MUTUAL FIRE INSURANCE COMPANY,           \nCARRIER/TPA                   RESPONDENT \n \n \nOPINION FILED 25 AUGUST 2023 \n \n \nOn  hearing  before Arkansas Workers’ Compensation Commission (AWCC) Administrative \nLaw Judge JayO. Howe, 9 March 2023, Pine Bluff, Jefferson County, Arkansas. \n \nMr.  Steven R. McNeely,  Attorney-at-Law,  of  Jacksonville,  Arkansas, appeared for  the \nclaimant. \n \nMr. Jason M. Ryburn,  Attorney-at-Law,  of  Little  Rock,  Arkansas, appeared for  the \nrespondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 9 March 2023 in Pine Bluff, Arkansas, after the \nparties participated in a prehearing telephone conference on 24 January 2023.  A Prehearing \nOrder, admitted to the record without objection as Commission’s Exhibit No 1, was entered \non 25 January 2023. The Order stated the following ISSUES TO BE LITIGATED: \n1.   Whether  the  claimant is  entitled  to  additional  indemnity  benefits  and  medical \ntreatment. \n \n2.  Whether the claimant is entitled to any attorney’s fee. \nAll other ISSUES were reserved. \nThat Order set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n\nJ. Brown- H006469  \n2 \n \n2.    An  employee/employer/carrier  relationship  existed  on  24  August  2020 when  he \nsustained a compensable injury to his back.\n1\n \n \n3.  The respondents accepted the back injury and paid accompanying benefits, including \npayment for a back surgery. \n \n4.  The respondents denied an injury to the claimant’s right foot \n5. The parties would stipulate to the applicable compensation rates. \nThe claimant was the sole WITNESS at the hearing. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire responses, \nwere  incorporated by  reference  into  the  Prehearing  Order. Those  responses  were  also \nadmitted to the record as Commission’s Exhibit Nos 2 (for the claimant) and 3 (for the \nrespondents). The CLAIMANT CONTENDS: \n1.  That he is entitled to additional TTD for his back injury through his return to work on \n21 December 2020. \n \n2.  That he is entitled to reimbursement for purchasing a power lift recliner, an adjustable \nbed, and a Teeter inversion table. \n \n3.  That he is entitled to additional mileage. \n \n4.  That he is entitled to medical treatment, to include a surgical procedure, and additional \nTTD for his right foot. \n \nThe RESPONDENTS CONTEND: \n1.  That all appropriate benefits have been paid and that the statute of limitations bar \nportions of the additional claims sought. \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1\n The  Order  correctly  notes  that  the  claimant  sustained  a  compensable  injury  to  his  back.  It \nerroneously states, at Stipulations Paragraph 2, that he also sustained an injury to his right foot. As \nnoted  in  Stipulations  Paragraph  4,  and  consistent  with  the  respondents’  actual  position,  the \nrespondents denied a compensable injury to the claimant’s right foot. This was addressed on the record \nbefore any testimony was offered. See TR at 8. \n\nJ. Brown- H006469  \n3 \n \nHaving  reviewed  the  record  as  a  whole  and  having  heard  testimony  from  the  witness, \nobserving his demeanor, I make the following findings of fact and conclusions of law under \nArk. Code Ann. § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The  previously  noted  stipulations  are  accepted,  specifically  that  a  back  injury  was \naccepted as compensable, but not the claimant’s foot injury. \n \n3. The  claimant produced  a  preponderance  of  evidence  that  his  TTD  benefits  were \nunderpaid due to a mathematical error on the Form W and is entitled to the balance owed \nfor the underpaid TTD benefits. \n \n4.  The claimant failed to prove, by a preponderance of the evidence, that he was entitled \nto TTD benefits between the last posted payment and his return to work on 21 December \n2020. \n \n5. The claimant failed to prove, by a preponderance of the evidence, that he suffered a \ncompensable foot injury, that he is entitled to additional TTD benefits related to his foot, \nand that he is entitled to additional treatment related to treatment for his foot. \n \n6.  The claimant failed to prove, by a preponderance of the evidence, that the purchase of \nan adjustable bed, power recliner, and Teeter device were reasonable and necessary for \nthe treatment of any health condition. \n \n7.  The claimant is entitled to mileage associated with approved care for his back injury. \n \n8. The claimant’s attorney is entitled to a fee in an amount consistent with the indemnity \nbenefits noted above. \n \nIII.  HEARING TESTIMONY and MEDICAL EVIDENCE                                                                                                        \nA. Claimant on Direct Examination  \nJames Wesley Brown is a fifty-three (53) year old man who began working for L & R \nDistributors in 2009 and remained employed there at the time(s) relevant to this case. [TR \nat 13]  He was working as a warehouse supervisor in August of 2020 and was responsible for \nensuring  merchandise  moved  from  one  area  of  the  warehouse  to  another.  [TR  17-18]  Mr. \nBrown stated that he injured his back on 24 August 2020 while operating a stand-up forklift. \n[TR at 19]   He felt a “tweak” when the forklift bumped over a crack in the floor. \n\nJ. Brown- H006469  \n4 \n \nThe claimant felt increasing pain through that night and reported the injury the next \nday. [TR at 20] He was sent to Healthcare Works and was initially taken off work pending \nfurther diagnosis  and  treatment.  He ultimately  did  not  return  to work  until  21  December \n2020. [TR at 28] \nMr. Brown stated that he did not experience any specific incident or injury to his foot, \nseparate from the incident that he claimed injured his back. [TR at 29] He said that he was \npaid  TTD  beginning  in  August  and  through  October.  He  acknowledged  the  payments \nreflected on the respondents’ payment printout [see Cl. Ex. No 2 at 18-19], but denies receipt \nof the last payment listed, which would have covered 26 October to 8 November 2020. [TR at \n30] The claimant stated that he returned to work at light duty on 21 December 2020. [TR at \n31] \nThe claimant said that he did not care much for Dr. Paulus, who was treating him at \nthe end of 2020 and who returned him to work without any restrictions. [TR at 32-33] When \nan adjuster explained that his benefits stopped, he sought a Change of Physician.  Mr. Brown \nalso took issue with his mileage payments stopping after Dr. Paulas released him to work. \n[TR at 33-34] \nMr. Jones was later seen by Dr. Samuel Overly at UAMS, who eventually performed \na spinal decompression and fusion surgery on 15 November 2021. [TR at 36, Cl. Ex. No 1 at \n76-83]  The claimant said  that the surgery  helped  his  back pain.  About  a year\n2\n before the \nsurgery, he bought an adjustable bed, which he claims he “had to get.” [TR  at  38] He  also \nbought a power lift recliner and Teeter Hang Up inversion table. [TR at 39-40] He does not \n \n2\n Claimant  erroneously  testified  that  he  purchased  the  bed  about  a  month before  the  surgery.  The \nrecords,  however,  reveal  that  the  surgery  was  in  November  of  2021  and  the  bed  was  purchased  in \nOctober of 2020. \n\nJ. Brown- H006469  \n5 \n \ntake issue with his TTD benefits paid between his surgery in November and his subsequent \nreturn to work in February. [TR at 41] \nWhile Dr. Overly was seeing the claimant for his back, he referred Mr. Brown to Dr. \nChelsea Matthews for the ongoing nerve issue in his foot. [TR at 42]  The claimant is seeking \npayment for surgery to address the nerve issue in his foot. [TR at 43]  He said that he began \nreporting  trouble  with  his  foot  when  he  was  seeing  providers  for  his  back  problem.  He \nsuffered no injury or trauma to his foot. [TR at 44]  \nAfter  returning  to  work  at  L  &  R,  the  claimant  continued  until  his  position  was \neliminated after a management change. [TR at 45] He signed a separation agreement and \nreceived $8,034.00 in severance under the terms of the agreement. \nApart  from  his  employment  with  the  respondents,  the  claimant  also  worked  for \nHoliday Inn, beginning around August of 2021.  In November of 2022, after separating from \nL  &  R,  the  claimant  filed  for  unemployment.  [TR  at  47]  His  unemployment  claim  was \naccepted, and he began receiving benefits accordingly. [TR at 48] \nThe claimant closed his direct examination by explaining that he hopes to find new \nwork and reiterating his request for reimbursement for the bed, recliner, and Teeter device. \n[TR at 49]  On brief examination from the Commission, he did not dispute that Dr. Matthews \nnoted in February of 2022 that he had no work restrictions. [TR at 50]  \nB. Claimant on Cross Examination by Mr. Ryburn \nMr.   Brown   stated   again   that   he   denied   receiving   TTD   payments   for   the \nOctober/November   period in   2020.   [TR at   51] Mr.   Ryburn   noted   the respondents’ \ndocumentation showed the check being issued, but did not have any record proving that it \nwas actually deposited by the claimant. [TR at 52] \nThe claimant confirmed that he was let go from his employment, along with several \nothers, as part of a restructuring. Id. On the issue of whether his foot problem was related to \n\nJ. Brown- H006469  \n6 \n \nhis back injury, counsel asked, “it turned out to be a Morton’s neuroma, and not radicular \npain referred from your back?” [TR at 55] Claimant answered, “Well, that’s what they called \nit. I don’t know. But that’s what, you know, they called it when I started complaining to them \nabout it.” Id. \nMr. Brown acknowledged a previous injury to his foot that he failed to report to his \nproviders when seeking treatment relevant to this case. [TR at 56]  He said that was “because \nI didn’t feel it at the time.” Id.  He also agreed that he did not list a foot injury on his Form \nAR-C in this case was dated October of 2022. [TR at 57]  Nor did he list his foot on the Form \nAR-N, Employee’s Notice of Injury, dated September of 2020. [TR at 58] \nAfter  surgery,  Dr.  Overly charted  that the claimant “had complete resolution of \nradicular issues.  He is still having pain the right foot that is likely a Morton’s neuroma.  I’m \nreferring him to see my partner, Dr. Matthews, for this.” [TR at 59]  Dr. Matthews listed the \nMorton’s neuroma as a chronic problem. [TR at 58]  On  the  distinction  between  his  back \ninjury  and  the  foot  issue, respondents’ counsel asked, “in your mind,  the  fact  that  the \nradicular pain was going down your right leg and you have a Morton’s neuroma in your right \nfoot, that those things must be tied together?”  The claimant answered, “Yes, sir, for me it is. \nYes, sir.” [TR at 61] He then reaffirmed that he suffered no specific injury to his foot around \nthe time that he began complaining about it to the providers.  When asked, “can you point \nout an instance in Dr. Overly’s reports where he said a Morton’s neuroma is caused by a back \ninjury?” he admitted, “I can’t point that out... but anything can happen to the body.” [TR at \n62] \nMr. Brown went on to agree that his severance was paid out by the respondents as \nagreed and that it was paid out as “salary continuation.” [TR at 65]  \nHe acknowledged that when applying for unemployment benefits he said that he was \nwilling and able to work. [TR at 66] “Yes, sir, I did do that, because I was wanting my check.” \n\nJ. Brown- H006469  \n7 \n \nRegarding the conflict between that statement and his present claim for TTD related to the \nfoot issue, he admitted that he was “willing to state on that unemployment application that \n[he was] not temporarily and totally disabled by saying that [he] could work.” [TR at 67] He \nwent on to say, “I don’t think I ever lied.” [TR at 70] \nQ:  But you did to the Department of Workforce Services. \n \nA:  About when they said was I was able to work? \n \nQ:  Correct. \n \nA:  Well, that wasn’t intentionally. Like I said, I did it based upon to get my \ncheck... I was looking to receive my check, cause I’ve got bills to pay. \n \nQ:  And you’re looking to receive a check now, are you not, from this workers’ \ncomp claim? \n \nA:  Yes, sir.   Id. \n  \n Regarding the medical bed, recliner,  and  Teeter  device, the  claimant acknowledged \nthat they do not appear mentioned in the medical records until more than two (2) years after \nthe purchase of the bed, when Dr. Overly noted that he was seeking reimbursement through \nWorkers’ Compensation for those purchases. [TR at 72] On examination by the Commission, \nthe claimant acknowledged that he could not point to any place in the medical record prior \nto  purchasing  any  of  the  devices  where  they  were  ordered  or  recommended  by  a  treating \nphysician. [TR at 75] He nonetheless maintained that someone told him at some point in his \ntreatments that he should buy them. [TR at 75-76] \nC.  Claimant on Redirect and Recross \n The claimant offered brief testimony around the TTD payment he claims he did not \nreceive, with counsel noting that the coding on the payment sheet [Cl. Ex. No 2 at 18-19] was \ndifferent  for the  October/November check  versus  those  issued  before  it.  No  party  from  the \nrespondent was present to explain the payment coding.  \n\nJ. Brown- H006469  \n8 \n \n The  entire  file  was  incorporated  by  reference  and,  pending  receipt of post-hearing \nbriefs, the case was submitted. \n D.  Post-hearing Briefing \n Upon conclusion of the testimony, post-hearing briefing was discussed. By agreement, \nthose briefs were due by Friday, 7 April 2023. Both parties offered timely submitted filings. \n In  his  brief,  the  claimant  urged that  he  was  entitled  to:  (1) a  correction  in  the \ncompensation rates paid for the TTD benefits he received; (2) benefits for the foot issues; (3) \nadditional  TTD benefits  between  the  last  Respondent-noted  payment  and  his self-reported \nreturn  to  work  on or  about 20  December  2020; (4) reimbursement  for  the  medical  bed, \nrecliner, and Teeter device; (5) additional mileage; (6) denial of any respondent credit for the \nseverance payments; and (7) attorney’s fees.  [See, generally, Cl. Brief] \n In its simultaneously submitted brief, the respondents argued: (1) that the claimant \ndid not sustain a compensable foot injury; (2) that he was not a credible witness; (3) that the \nseverance payments foreclosed any right to TTD during the time relevant to those payments; \nand  (4)  that  he  was  not  entitled to  any  reimbursement  for  the  medical  devices.  [See, \ngenerally, Resp. Brief] \nIV.  ADJUDICATION \n The  stipulated facts are  outlined  above. It  is settled that  the  Commission, with the \nbenefit of being in the presence of the witness and observing his or her demeanor, determines \na witness’ credibility and the appropriate weight to accord their statements. See Wal-Mart \nStores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999).   \nA.  The Claimant is Entitled to Additional Monies for Underpaid TTD Benefits for  his \nBack Injury.  \n \nThe   claimant   notes   a   discrepancy   in   the   wage   information   provided   by   the \nrespondents and the information provided to the Commission from which his TTD payments \n\nJ. Brown- H006469  \n9 \n \nwere  calculated.  The  respondents  offer  no  explanation  for  why  the  total  wage  amount  of \n$32,509.08  [Cl. Ex. No 2 at 24]  is  not used  for  the gross  wage calculations  appearing on \nForm W [Cl. Ex. No 2 at 26]. The $32,468.90 and $31,993.88 totals appearing on the Form W \nappear  to  be  entered  on  the  form  in  error.  The  TTD  benefit  payments  should  be  adjusted \naccordingly, with the claimant being entitled to the balance owed against the miscalculated \namounts.  \nAdditionally,  the  claimant  asserts  that  he  did  not  receive  the  terminal  payment  on \n2020  TTD  benefits  for  the  period  listed  as  26  October  2020  to  8  November  2020.  At  the \nhearing,  the  respondents  offered  no  proof  of  receipt  or  deposit  by  the  claimant  on  that \npayment. Absent presentation of proof of the claimant’s actual receipt of those funds, he is \nentitled to a reissue of that payment in the adjusted amount noted above. \nB.  The Claimant Failed to Prove that he was Entitled to Additional TTD in 2020 on \nhis Back Injury.  \n \nTemporary total disability (TTD) is that period within the healing period in which the \nemployee  suffers  a  total  incapacity  to  earn wages. See Ark.  State Hwy. Dept.  v.  Breshears, \n272 Ark. 244, 613 S.W.2d 392 (1981). Gaps appear in the claimant’s medical documentation \nsupporting  his time  off work. Here,  the medical  evidence  shows  that  the  claimant  was  \nfirst taken  off  work  until  31 August 2020  after  his  initial  presentation  to  a  provider  \non  25 August 2020.  [See Cl. Ex. No 1 at 2, 6]  At  the  next  appointment,  he  was  kept  off  \nwork  until 7 September 2020. Id. at 11. Another note shows him ordered off work until 6 \nOctober 2022. Id. at 16. \nMr. Brown then saw Dr. Paulus for the first time on 20 October 2020. Id. at 17. Dr. \nPaulus noted, “I’m not sure the chronic pathology noted by the radiologist on MRI fits with \nthis mechanism  of injury, but again I’d like to  review the MRI myself.” Id. at  20.  He \nprescribed  physical  therapy  and  Gabapentin,  but  did  not  order  the  claimant  off  work. Id. \n\nJ. Brown- H006469  \n10 \n \nTestifying about having to return to work, the claimant stated, “if I wouldn’t have came [sic] \nback, then they was going to terminate me. And I was trying to get, what led me there was \nthe note that the nurse sent to [the insurance adjuster] Ms. Dianne Day saying I could come \nback full duty with no restrictions. And that was my first meeting with their doctor, Stephen \nPaulus.” [TR at 32] That return-to-work note does not appear in the record.  \nThe claimant testified at the hearing: \nQ: ... And explain to the judge why you think you were disabled during \nthat period of time, the problems you were having. \n \nA:  Oh, why they didn’t pay me? \n \nQ:  No, why you weren’t working. \n \nA:  Oh, because I couldn’t work, I mean, because of my, like I said, my \nback and what I do at the job, so I couldn’t at the time. \n \nQ:  All right.   [TR at 31] \n \nDr. Paulus next saw the claimant on 5 November 2020  stating again that, “[g]iven \nthe nature of his degenerative changes noted on imaging, I’m not sure the chronic pathology \nfits with this mechanism of injury.” Id. at 23. They discussed possible injections for his back \npain, but no work restrictions were ordered. \nThat visit appears to correlate with the time that the TTD payments stopped and with \nthe time that the claimant explains he was told by the adjuster that the respondents were \n“not going to pay you anymore because they said you had no restrictions.” [TR at 33] He \nobjected and was told the “only way I [the respondents] can start paying you back again is \nfor you to go back and have them to overrule that return to work notice.” Id.  \nAfter returning to work on 21 December 2020, the claimant presented to Dr. Paulus \nfor the last time. The 31 December 2020 physician’s note states: \nI had a lengthy conversation with Mr. Brown, his wife, and our WCC \nliaison Zorian about the pathophysiology of his symptoms, physician-directed \nwork restrictions vs self-imposed limitations, work safety, and the causality (or \n\nJ. Brown- H006469  \n11 \n \nin this case, I believe the lack thereof) between the work accident he described \nand the chronic pathology revealed by his advanced imaging. I offered for him \nto seek a second opinion, as he’s clearly displeased that (A) I have continued \nhis  work  status  and  (B)  that  I  cannot  causally  link  his  injury  to  the  MRI \nfindings, and he will contact his worker’s compensation adjuster with his \ndecision...  [See Cl. Ex. No 1 at 27] (emphasis added).  \n \nDr.  Paulus  provided  a  work  notice  on  the  day  of  that  visit  making  clear that  the \nclaimant had no physician-directed work restrictions. Id. at 28. \n Even absent the availability of the actual return-to-work form noted earlier, there is \nclear evidence that the claimant chose, of his own accord, not to return to work.\n3\n The claimant \noffers little beyond his own belief to advance his (otherwise unsupported) claim for additional \nTTD benefits before returning to work in December. The record does not indicate a finding \nthat he was both within a healing period and totally incapacitated from earning wages during \nthe relevant times. See, e.g., Davis v. Remington Arms Co., 2018 Ark. App. 390, 557 S.W.3d \n894. He is, therefore, not entitled to the additional TTD benefits sought for his back injury in \n2020. \nC.  The Claimant Failed to Prove by a Preponderance of the Evidence that he Suffered \na Compensable Foot Injury. \n \nUnder Arkansas’ Workers’ Compensation laws, a worker has the burden of proving, \nby a preponderance of the evidence, that he sustained a compensable injury. Ark. Code Ann. \n§ 11-9-102(4)(E)(i).  A compensable injury must be established by medical evidence supported \nby objective findings. Ark. Code Ann. § 11-9-102(4)(D). The parties stipulated to an accepted \nback injury, but they do not agree on whether the claimant also suffered a compensable work \ninjury to his foot while driving a forklift. He is not clear as to whether the foot problem arose \nas  gradual  onset  or  by  specific  incident,  though  the  specific  incident  of  driving  the  forklift \n \n3\n The claimant makes no allegation that he was threatened with termination for absenteeism during \nany period of time off work actually ordered by a physician or provider. Instead, it appears his refusal \nto return to work because he disagreed with Dr. Paulus led to the threat of termination for the same. \n\nJ. Brown- H006469  \n12 \n \nover  the  cracked floor  seems  most  likely  from  his  testimony. Regardless,  his claim  for  a \ncompensable foot injury fails either way. \nTo prove a specific incident injury, the claimant must establish four (4) factors, by a \npreponderance of the evidence: (1) that the injury arouse during the course of employment; \n(2) that the injury caused an actual harm that required medical attention; (3) that objective \nfindings  support  the  medical  evidence;  and  (4)  that  the  injury  was  caused  by  a  particular \nincident, identifiable in time and place. See Cossey v. G. A. Thomas Racing Stable, 2009 Ark. \nApp. 666,5, 344 S.W.3d 684, 689. \nTo prevail on that claim for a gradual onset injury, he must prove, by a preponderance \nof the evidence that: (1) the injury arose from his employment; (2) the injury caused actual \nharm that required medical attention; and (3) the injury was a major cause of the need for \ntreatment.  The  existence  and  extent  of  the  injury  must  be  proven  by  objective  medical \nevidence. See Wal-Mart Stores, Inc., supra at 446; Ark. Code Ann. 11-9-102(4)(E)(ii). For an \ninjury to be considered a “major cause” for a need for treatment, it must be more than fifty \npercent  (50%) of  the  cause  and  it  must  be  established, by  a  preponderance of  the  medical \nevidence. Ark. Code Ann. §11-9-102(14)(A-B). \nThe claimant failed to prove, by a preponderance of the evidence, that he sustained a \ncompensable foot injury under either theory. While his foot complaints appear regularly in \nthe medical records, he cannot show a causal link between his driving a forklift in August of \n2020  or  some  other  workplace  conditions  creating  a  causal  link  between  his  work  and  his \nMorton’s neuroma. At best, he can rely on a June 2021 note that states “the pain in his foot, \nwhich he seems most concerned about, is not a classic dermatomal manifestation of L5 pain, \nthough it certainly can be.” [See Cl. Ex. No 1 at 61] His  foot  pain  was  addressed  again, \nhowever, in a December 2021 post-surgical follow-up note with Dr. Overly. “He is happy to \nreport that his radicular complaints have resolved, though he still does feel like he has a rock \n\nJ. Brown- H006469  \n13 \n \n[under his foot] an issue which I told him initially was likely a Morton’s neuroma.” [See Cl. \nEx. No 1 at 84] (emphasis added).  The note continues, “[h]e has had complete resolution of \nhis radicular issues. He is still having the pain in the right foot that is likely a Morton’s \nneuroma. I am referring him to see my partner Dr. Matthews for this.” Id. \nThe claimant then saw Dr. Matthews in January of 2022, who noted, “[h]is radicular \ncomplaints have resolved but he still has lingering forefoot pain.” [See Cl. Ex. No 1 at 87] \nConfirming Dr. Overly’s earlier thoughts, Dr. Matthews assessed “right foot 2\nnd\n and  3\nrd\n \nwebspace Morton’s neuromas,” and described it as a “chronic problem.” [See Cl. Ex. No 1 at \n90]  Again in February it was noted that “he has had complete resolution of his back pain \nand radicular issues. He is still having the pain/numbness in the right foot that is likely a \nMorton’s neuroma rather than a persistent radiculopathy presenting itself.”  [See Cl. Ex. No \n1 at 94] \nThe neuroma is clearly a separate, chronic condition, not related to his back injury, \nand  without  any  evidence  supporting  a causal  relationship  with  his  work  environment  or \nworkplace  activities.  And  as  noted  above,  the  claimant  admitted  on  examination  that  he \ncannot  point  to  any  medical  opinion  linking  the  neuroma  to  his  back  injury or  any  work-\nrelated  activity.  Having  failed  to  prove  by  a preponderance  of  the  evidence  that  his  foot \ncondition is a compensable injury, his claims for benefits related thereto must fail. \nD.    The  Claimant  is  Not  Entitled  to  Reimbursement  for  the  Devices  he  Purchased \nWithout a Physician’s Order. \n \n Arkansas  law  provides  that  an  “employer shall  promptly  provide  for  an  injured \nemployee  such  medical,  surgical,  hospital,  chiropractic,  optometric,  podiatric,  and  nursing \nservices  and  medicine,  crutches,  ambulatory  devices,  artificial  limbs,  eyeglasses,  contact \nlenses, hearing aids, and other apparatus as may be reasonably necessary in connection with \nthe injury received by the employee.” Ark. Code Ann. § 11-9-508(a)(1). The claimant urges \n\nJ. Brown- H006469  \n14 \n \nthat the bed, recliner, and Teeter device were reasonable and necessary purchases for which \nhe should be reimbursed. I disagree. \n Claimant admits that no contemporaneous documentation orders or prescribes any of \nthe purchases, which occurred in October (the bed) and December (the Teeter device) of 2020, \nlong before his back surgery, and then on the day he discharged after surgery in November \nof  2021 (the recliner). [See Cl. Ex. No 2 at 1-3.]  Instead,  he  represents  only  that  someone \nalong the course of his many doctor’s appointments told him he should buy these things. The \nclaimant’s testimony in this regard is not credible.\n4\n “Where there are contradictions in the \nevidence,  it  is  within  the  Commission’s  province  to  reconcile  conflicting  evidence  and \ndetermine true facts. [It] is not required to believe the testimony of the claimant or any other \nwitness... [m]oreover, a claimant’s testimony is deemed controverted as a matter of law.” \nDavis, 2018 Ark. App. 390, 398, 557 S.W.3d 894, 900 (cleaned up).  \n The only mention of the devices in the records relied upon by the claimant appears to \nbe from his final visit with Dr. Overly, which notes in the history section what the claimant \nrelayed, “[h]e says that [the bed and recliner are] very helpful for him. He is having to have \nreimbursement for these 2 medical necessities.” [See Cl. Ex. No 1 at 136] That visit occurred \non 16 November 2022, several weeks after he filed his 7 October 2022 request for a hearing \non this matter was filed with the Commission. I do not find that any of the devices purchased \nwere  reasonable  or  necessary  and,  thus,  fall  outside  of the respondents’ responsibility for \npayment. \nE.  The Claimant is Entitled to Medical Mileage. \n \n \n4\n The respondents remind the Commission in their brief that the claimant admitted being untruthful, \nor  at  least  plainly  inconsistent,  in  his  unemployment  application.  There,  he  certified  that  he  was \nwilling and able to work while, at the same time, claiming here that he was entitlement to TTD benefits \nrelated to his foot problems. \n\nJ. Brown- H006469  \n15 \n \nThe claimant produced evidence for mileage he incurred while seeking treatment and \nfor which he claimed no payment was remitted. See Cl. Ex. No 2 at 27-32, TR at 33-34, Cl. \nBrief  at  10. Besides mention during a brief discussion on the record before the claimant’s \ntestimony  [TR  at  9-10.],  the  respondents  offered  no  evidence  or  argument  objecting  to  the \nappropriateness of payment on those mileage submissions. To the extent that any properly \nsubmitted mileage remains unpaid, the respondents are to remit payment accordingly. See \nAWCC Advisory 89-2, Revised May 2022. \n   F.  Attorney’s Fee \n Arkansas law provides for an attorney’s fee of twenty-five percent (25%) on indemnity \nbenefits payable to the claimant. Ark. Code Ann. § 11-9-715(a)(1)(B). While the respondents \naccepted the claimant’s back injury and paid for most benefits related thereto, the applicable \ncompensation rate on those TTD benefits was not resolved prior to the hearing, despite \nindications that it would be or that it might be addressed between the date of the hearing \nand the submission of the post-hearing briefs. The record, however, reflects no resolution on \nthe TTD underpayments or the unreceived payment. Accordingly, the claimant’s attorney is \nentitled to a fee associated with the amounts awarded on those unpaid benefits. \nV.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, the \nrespondents are to remit to the claimant and his attorney all amounts owed, consistent with \nthis Order. This claim is otherwise denied and dismissed. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H006469 JAMES W. BROWN, EMPLOYEE CLAIMANT L & R DISTRIBUTORS, INC., EMPLOYER RESPONDENT LIBERTY MUTUAL FIRE INSURANCE COMPANY, CARRIER/TPA RESPONDENT OPINION FILED 25 AUGUST 2023 On hearing before Arkansas Workers’ Compensation Commission (AWCC) Administ...","fetched_at":"2026-05-19T23:04:18.035Z","links":{"html":"/opinions/alj-H006469-2023-08-25","pdf":"https://labor.arkansas.gov/wp-content/uploads//BROWN_JAMES_H006469_20230825.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}