{"id":"alj-H006753-2024-07-11","awcc_number":"H006753","decision_date":"2024-07-11","opinion_type":"alj","claimant_name":"Jacob Shotzman","employer_name":null,"title":"SHOTZMAN VS. WILBERT FUNERAL SERVICES INC.AWCC# H006753July 11, 2024","outcome":"denied","outcome_keywords":["denied:1"],"injury_keywords":["back","lumbar","hip"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/SHOTZMAN_JACOB_H006753_20240711.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHOTZMAN_JACOB_H006753_20240711.pdf","text_length":12541,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n \n CLAIM NO. H006753 \n \n \nJACOB M. SHOTZMAN, EMPLOYEE CLAIMANT \n \nWILBERT FUNERAL SERVICES INC., EMPLOYER RESPONDENT \n \nGALLAGHER BASSETT SERVICES INC., CARRIER RESPONDENT \n \n \n OPINION FILED JULY 11, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On June 5, 2024, the above captioned claim came on for a hearing at Fort Smith, Arkansas. A \npre-hearing  conference  was  conducted  on April  4,  2024, and  a  pre-hearing  order  was  filed  on  that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.  All prior Opinions are res judicata. \n            3. The employee/employer/carrier relationship existed on August 29, 2020.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \n\nShotzman-H006753 \n2 \n \nwere limited to the following: \n1. Whether  claimant  is  entitled  to  additional  medical  treatment  as  recommended  by Dr.          \n Blankenship. \nAll other issues are reserved by the parties. \nThe  claimant  contends  that “The  surgery recommended by  Dr. Blankenship represents \nreasonably necessary medical treatment for his compensable injury and the expense of such treatment \nis the liability of the respondents under Ark. Code Ann. § 11-9-508.” \nThe respondents contend that “All  appropriate  benefits  are  being  paid  with  regard  to  this \nmatter. The recommended surgery did not pass precertification and is not reasonable and necessary \nassociated with claimant’s injury.”   \n From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on April \n4, 2024, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.  Claimant has met his burden of proof by a preponderance of evidence that he is entitled to \nadditional medical treatment from Dr. James Blankenship for his back injury.  \n \n FACTUAL BACKGROUND \n This matter was previously before this court for a hearing on June 1, 2021. An opinion was \nrendered on July 1, 2021, in which I found, among other things, that claimant had met his burden of \n\nShotzman-H006753 \n3 \n \n \nproof  that  he  was  entitled  to  additional  medical  benefits  from  Dr. Blankenship for  his lower  back \ninjury. That opinion was appealed to the Full Commission, where it was affirmed.  The parties have \nstipulated that the prior opinions in this case are res judicata for this hearing. \nHEARING TESTIMONY \n \n Claimant was the only witness called to testify.  He explained that after the Full Commission \nawarded  him  additional  medical  benefits, Dr.  Blankenship  operated  on  his  back. He  then  had \ninjections  and  physical  therapy  while  remaining  on  medication  for  his  back. A  second  surgery  was \nperformed and claimant underwent  a  similar  course  of  post-surgery  care.   That  surgery  was  not  as \nsuccessful as the first one, as claimant has more pain now than he did before the first surgery, and \nreports numbness in his right thigh. Claimant requested a third surgery so he could get some relief.  \n On  cross-examination, claimant answered “yes and no,” when asked if the second surgery \nhelped him in any way. He explained that his issues were in a different location now, but still in his \nlower back and down into his legs. Claimant did not recall Dr. Blankenship relating to him what was \nin the medical notes from the September 21, 2023, visit that expressed uncertainty about the benefits \nof another surgery. He understood the scar tissue on the right side of his back presented a potential \nproblem in how the surgery would be performed. Claimant was willing to see another physician at the \nTexas Back Institute in Plano, Texas, so long as all his expenses were paid before the trip.\n1\n   \n During questioning from the court, claimant clarified that the first surgery was done on the \nL5-S1 area of his back and helped him, but the second was a fusion at L4-L5 in which a BridgePoint \nclamp was inserted. His understanding is that the recommended third surgery is to “revamp the second \nsurgery where the artificial disc is sticking into my psoas muscle.”     \n \n \n1\n There was no pending motion for an independent medical evaluation; the parties are free to cooperate in such an \nexamination. \n\nShotzman-H006753 \n4 \n \n \nREVIEW OF THE EXHIBITS \n  \n A chronological review of the records submitted by the parties yields the best understanding \nof what information is provided therein.   \n Claimant submitted records from  February  14,  2023, through  February  4,  2024, from  Dr. \nBlankenship and other facilities that treated him as part of Dr. Blankenship’s care. Claimant’s \ntestimony relating the difficulties he has had after the second surgery is supported by those records; \nhe was given physical therapy and a facet injection to try to address the back pain. Dr. Blankenship \ninitially expressed some uncertainty as how to best address claimant’s post-surgical issues (CL.X.58), \nbut his February 4, 2024, record said that surgery was needed to fix the implant that had extruded into \nthe paraspinous muscles on the right side. Dr. Blankenship outlined the options he was considering \nto correct the implant, and conceded that if one did not work, he would have to change his approach \nintraoperatively.   \n Respondent had a Utilization Review performed by Dr. Sumeet Vadera on February 28, 2024; \nthat review  by  Dr.  Vadera  constituted  the  entire  exhibit  submitted  by  respondent. Dr.  Vadera \ndetermined  that  the corrective  surgery  would  not  be  certified because he  did  not  feel  it  met  the \ncriterion as set forth in the Official Disability Guidelines:  \nThe  request  is  not  supported  based  on  the  submitted  documentation. \nAlthough the request is indicated and the claimant presented with low back \npain,  radiated  to  bilateral  posterior  leg  down  to  their  knees,  and  significant \npain  around  the  attachment  of  the  gluteus Medius,  the  request  is  still  not \nmedically  necessary  as  the  guideline  states  there  should  be  presence  of \nconformed radiculopathy with consistent straight leg raise test (SLR), crossed \nstraight  leg  raise  and  reflex  exam  which  correlates  with  symptoms and \nimaging.  The  climate  has  negative SLR  and normal  range  of  motion. \nMoreover, the guideline states that a confirmed nerve root compression must \nbe consistently present both in the imaging findings and physical examination. \nThe claimant has no lumbar spine imaging results submitted and the specific \nlevel of the lumbar spine was not indicated to where the procedure will take \nplace.  Furthermore,  the  guidelines  also  state  that  previous  attempt  to \nconservative treatment must be documented with all of the following: work \n\nShotzman-H006753 \n5 \n \n \nwith  low  back  conditions  after  education  for  low  back  conditions;  drug \ntherapy with NSAID or other analgesic therapy, or muscle relaxant; a support \nprovider  referral  was  documented  with  physical  therapy  or  manipulation \ntherapy. There was no indication the claimant underwent treatment with work \non low back conditions after education for low back conditions. Hence, it is \nstrongly not supported. Therefore, the prospective request for 1 bilateral redo \ndecompressions and bilateral extreme lateral discectomies is non-certified.   \n \n    \n On April 4, 2024, Dr. Blankenship wrote a response to Dr. Vadera’s finding of non-\ncertification, which said in pertinent part: \nFirst of all, Mr. Shotzman’s surgery was denied. One of the problems is it said \nour note did not show weakness, and I think you can see in my note it says \nright quad and hip flexor weakness. It is all capitalized, so that it should be easy \nto see with 4/5 strength. So that denial was basically just that you did not read \nthe clinic note. I have offered the patient L4-5 lateral arthrodesis. The patient’s \nimplant has extruded out approximately 1 centimeter into the psoas muscle. I \ndo feel like his weakness, especially his hip flexor weakness, this coming from \nthis. We have been trying to avoid revising this, but we tried everything short \nof that and it is not working. The gentleman has had extensive physical therapy \nwhich is documented in his records... \n \nAs far as there is no need for the third surgery, I have just outlined that for the \nsecond time in this note. The patient has marked hip flexor and quad weakness. \nHe has an extruded implant. It says there's no documentation to back this up; \nThat is ridiculous, there is. I'm not going to reiterate it; Just look at my notes \nand X-rays. It also stated he had no therapy. Once again, you just have to look \nat the records. I have it dictated in there that the patient has failed routine usual \nconservative measures and has done therapy, and then it also showed he did \nnot  have  any  weakness,  which  is  well  documented  in  my  most  recent  notes \nthat he does have quad and hip flexor weakness, both related probably to the \nextruded implant. \n \nADJUDICATION \n  \n Claimant’s request for additional medical treatment was denied based on a Utilization Review \nrequested by respondent Gallagher Bassett after Dr. Blankenship recommended a third back surgery \nto treat claimant’s compensable injury. The  question  before  me  is whether  the  testimony  of  the \nclaimant and the opinion of his treating physician is more persuasive than the report of a doctor who \n\nShotzman-H006753 \n6 \n \n \nreviewed records provided to him but did not conduct a physical examination of claimant. It is the \nCommission's  duty  to  make  determinations  of  credibility,  to  weigh  the  evidence,  and  to  resolve \nconflicts in medical testimony and evidence. Martin Charcoal, Inc. v. Britt, 102 Ark. App. 252, 284 S.W.3d \n91 (2008). Claimant was a credible witness; I believe he sincerely wants to get better and return to the \nworkforce.  \n Regarding  the  disagreement  between  the medical  reports  and  the  Utilization  Review, Dr. \nBlankenship pointed out in rather scathing terms in his letter of April 4, 2024, that the review of the \nrecords by Dr. Vadera overlooked some important points in rendering a denial of the recommended \nsurgery. Dr. Blankenship plainly explained that the current problem claimant is having is due to an \nextrusion  of  the  implant at  the  L4-5  level,  that  conservative  care  had  been exhausted  and  that  this \ndifficult surgery was the most likely means of getting claimant some relief. The information Dr. Vadera \nrecited as missing from the records he reviewed was contained in the reports submitted as exhibits in \nthis hearing; Dr. Vadera was not provided with an entire record from Dr. Blankenship.\n2\n  Regardless \nof why it was inadequate, this Utilization Review has little credibility.  Dr. Blankenship’s records are \nmore credible, and therefore claimant's proof is sufficient to support his request for additional medical \ntreatment for his compensable injury. \nORDER \n \n Claimant has met his burden of proving by a preponderance of the evidence that he is entitled \nto  additional  medical  treatment  as  recommended  by  Dr. Blankenship for  his compensable  injury, \nincluding an L4-5 lateral arthrodesis. \n Respondent is responsible for paying the court reporter her charges for preparation of \nthe transcript the sum of $291.25. \n \n2\n Utilization Reviews frequently list the records reviewed, but this one did not.  \n\nShotzman-H006753 \n7 \n \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H006753 JACOB M. SHOTZMAN, EMPLOYEE CLAIMANT WILBERT FUNERAL SERVICES INC., EMPLOYER RESPONDENT GALLAGHER BASSETT SERVICES INC., CARRIER RESPONDENT OPINION FILED JULY 11, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian C...","fetched_at":"2026-05-19T22:51:14.135Z","links":{"html":"/opinions/alj-H006753-2024-07-11","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/SHOTZMAN_JACOB_H006753_20240711.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}