{"id":"alj-H008920-2023-05-17","awcc_number":"H008920","decision_date":"2023-05-17","opinion_type":"alj","claimant_name":"John Kunkel","employer_name":"Leaffilter North, LLC","title":"KUNKEL VS. LEAFFILTER NORTH, LLC AWCC# H008920 MAY 17, 2023","outcome":"granted","outcome_keywords":["granted:2"],"injury_keywords":["ankle"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//KUNKEL_JOHN_H008920_20230517.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KUNKEL_JOHN_H008920_20230517.pdf","text_length":7658,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H008920 \n \n \nJOHN KUNKEL,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nLEAFFILTER NORTH, LLC, \nEMPLOYER                                                                                                         RESPONDENT \n \nARCH INS. CO./PMA MG’T CO., \nCARRIER/TPA                                                                                             RESPONDENT \n                                                                                                               \n \nOPINION AND ORDER GRANTING RESPONDENTS’ MOTION TO COMPEL \nFUNCTIONAL CAPACITY EVALUATION (FCE) \nFILED MAY 17, 2023 \n \nSubmitted for decision on May 1, 2023, on the parties’ briefs and designated record pursuant to \nthe  parties’  mutual  agreement, before  the Arkansas  Workers’  Compensation  Commission  (the \nCommission),  Administrative  Law  Judge  (ALJ)  Mike  Pickens,  in  Little  Rock,  Pulaski  County, \nArkansas. \n \nThe claimant, Mr. John Kunkel, is represented by the Honorable Andy Caldwell, Caldwell Law \nFirm, Little Rock, Pulaski County, Arkansas. \n \nThe respondents are represented by the Honorable Lee J. Muldrow, Wright, Lindsey & Jennings, \nLittle Rock, Pulaski County, Arkansas.  \n \nINTRODUCTION \n     The  parties  mutually  agreed  to  submit  the  issue  of  whether  the  ALJ  should  grant  the \nrespondents’ motion to compel the claimant to submit himself for an FCE. The respondents’ filed \ntheir motion concerning the FCE on or about April 12, 2023; and the claimant filed his response \nthereto, along with an exhibit consisting of attached medical records, on or about April 14, 2023. \nThe  ALJ  scheduled  and  conducted  a  prehearing  teleconference  on  April  18,  2023,  and  the \nprehearing order was filed the same day, April 18, 2023. The respondents filed their letter brief on \nMay 1, 2023, and the claimant filed his response thereto on the same day, May 1, 2023. Therefore, \nthe case was deemed as submitted for decision on May 1, 2023.  \n\nJohn Kunkel, AWCC No. H008920 \n2 \n \n     The  record  shall consist of the prehearing order filed April 18, 2023, as well as the parties’ \nrespective motion and response thereto, and briefs, supra, as well as any and all exhibits attached \nto the aforementioned filings. In addition, the record shall consist of the Commission’s entire file \nin this claim.  \n \nSTATEMENT OF THE CASE \n \n     The claimant, Mr. John Kunkel (the claimant) sustained an admittedly compensable injury to \nhis left ankle on November 2, 2020. The respondents accepted the claim as compensable and paid \nboth  medical  and  temporary  total  disability  (TTD)  benefits.  Dr.  Phillip  Smith,  the  claimant’s \ntreating orthopedic surgeon, treated the claimant from November 2020 through March 2, 2021, at \nwhich  time  he  ordered  an  FCE,  which  was  performed  on  March  12,  2021.  This  FCE  was \ndetermined  to  be,  “unreliable.”  On  April  6,  2021,  Dr.  Smith  opined  the  claimant  had  reached \nmaximum medical improvement (MMI) and released him. \n     Thereafter the claimant exercised his statutory right to a one (1)-time-only change of physician \n(COP)  to  Dr.  Gregory  Ardoin.  Dr.  Ar.  Doin  ultimately  performed  arthroscopic  surgery  on  the \nclaimant’s left ankle on February 1, 2022, after which the claimant underwent cortisone injections \nand physical therapy (PT). Dr. Ardoin opined the claimant reached MMI as of November 14, 2022, \nand  released  him.  At  this  time  Dr.  Ardoin  also  provided  the  claimant  the  generalized  work \nrestrictions,  stating  specifically  the  claimant  should,  “avoid  uneven  ground,  no  stooping  or \nsquatting  and  avoid  ladder  climbing.”  (Claimant’s  Response  to  the  Respondents’  Motion  to \nCompel FCE, Exhibit A, at page 6). In addition, Dr. Ardoin summarily assessed the claimant three \n(3)   separate   permanent   anatomical   impairment   ratings,   and   cited   the American   Medical \nAssociation  Guides  to  the  Evaluation  of  Permanent  Impairment (AMA,  4\nth\n  Edition,  1993)  (the \nGuides). (Id.). \n\nJohn Kunkel, AWCC No. H008920 \n3 \n \n     Among other benefits, the claimant is requesting the Commission to determine the extent of the \nclaimant’s permanent anatomical impairment, the claimant is requesting vocational rehabilitation \nbenefits  pursuant  to Ark.  Code  Ann.  Section  11-9-505  (2023  Lexis  Replacement)  (Section  505 \nbenefits).  \nDISCUSSION \n     It is well-settled that the Commission may require the claimant to submit to such examinations \nas  may  be  necessary  to  assist  the  trier-of-fact  to  have  sufficient  evidence  to  rule  on  issues  that \nrequire the ALJ and/or Commission to determine the extent of a claimant’s permanent impairment, \nas well as his entitlement to wage loss disability benefits, if any. FCE’s are commonly used for \nthese purposes, especially where the existing medical evidence is conclusory, incomplete, and/or \nconflicting. See, e.g., North Hills Surgery Center v. Otis, 2021 Ark. App. 468, 638 S.W.3d 323 \n(Ark. App. 2021); Eldridge v. Pace Industries, LLC, et al, 2021 Ark. App. 245, 625 S.W.3d 734 \n(Ark. App. 2021).  \n     In  this  case,  especially  in  light  of  the  fact  the  impairment  ratings  Dr.  Ardoin  assigned  the \nclaimant are conclusory and do not explain the basis for the ratings (other than summarily citing \nthe Guides); as well as the fact the claimant is requesting Section 505 benefits, this ALJ is of the \nopinion that any and all additional information – and on these facts, particularly an FCE – would \nbe  beneficial  to  both  the  parties’  and  the  ALJ  in  determining  the  extent  of  the  claimant’s \nimpairment, as well as what the exact nature of his permanent physical limitations and restrictions \nare and, therefore, what type of jobs he is able to perform. Moreover, in the interest of fundamental \nfairness and completeness of the ultimate hearing record, I am of the opinion the respondents are \nentitled to the additional factual information such as that/those a current, post-surgery FCE will \nundoubtedly provide.  \n\nJohn Kunkel, AWCC No. H008920 \n4 \n \n     Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The parties’ stipulations contained in the prehearing order filed April 18, 2023, \nhereby are accepted as facts. \n \n2. The respondents’ motion requesting the claimant should be compelled to submit \nhimself for a current FCE at the respondents’ expense should be and hereby is \nGRANTED.  \n \n3. The claimant’s and respondents’ attorneys shall confer and cooperate in scheduling \nand ensuring that the claimant attends an FCE with Mr. Rick Byrd, of Functional \nTesting Centers, Inc., at their earliest possible convenience.   \n \n     Of course, if the claimant fails and/or refuses to comply with the terms of this opinion and \norder, he may be subject to a show cause hearing for contempt and, if justified, appropriate \nsanctions. I trust this will not be necessary.  \n     IT IS SO ORDERED. \n                                                                     \n____________________________                                                                      \n                                                                        Mike Pickens \n                                                                         Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H008920 JOHN KUNKEL, EMPLOYEE CLAIMANT LEAFFILTER NORTH, LLC, EMPLOYER RESPONDENT ARCH INS. CO./PMA MG’T CO., CARRIER/TPA RESPONDENT OPINION AND ORDER GRANTING RESPONDENTS’ MOTION TO COMPEL FUNCTIONAL CAPACITY EVALUATION (FCE) FILED MAY 17, 2023 Submitted f...","fetched_at":"2026-05-19T23:07:38.902Z","links":{"html":"/opinions/alj-H008920-2023-05-17","pdf":"https://labor.arkansas.gov/wp-content/uploads//KUNKEL_JOHN_H008920_20230517.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}