{"id":"alj-H009640-2023-04-04","awcc_number":"H009640","decision_date":"2023-04-04","opinion_type":"alj","claimant_name":"James Washington","employer_name":"Evergreen Packaging","title":"WASHINGTON VS. EVERGREEN PACKAGING AWCC# H009640 APRIL 4, 2023","outcome":"granted","outcome_keywords":["dismissed:1","granted:5","denied:5"],"injury_keywords":["back","lumbar","hip","strain","sprain","fracture","knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/WASHINGTON_JAMES_H009640_20230404.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WASHINGTON_JAMES_H009640_20230404.pdf","text_length":47107,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H009640 \n \nJAMES WASHINGTON, EMPLOYEE       CLAIMANT \n \nEVERGREEN PACKAGING, EMPLOYER          RESPONDENT \n \nACE AMERICAN INSURANCE Co., CARRIER         RESPONDENT \n \nESIS, Inc., TPA              RESPONDENT \n \n \n \nOPINION FILED APRIL 4, 2023 \n \n \n \nOn hearing before Arkansas Workers’ Compensation Commission (AWCC) Administrative \nLaw Judge JayO. Howe, January 12, 2023, Pine Bluff, Arkansas. \n \nMr. Steven McNeely appearing for the claimant. \n \nMr. William C. Frye appearing for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on January 12, 2023, in Pine Bluff, Arkansas, after \nthe parties participated in a pre-hearing telephone conference on October 25, 2022. The \nsubsequent Pre-hearing Order, admitted to the record without objection as Commission’s \nExhibit No 1, was entered on October 26, 2022. The Order stated the following ISSUES TO \nBE LITIGATED: \n1.  Whether the claimant is entitled to additional Total Temporary Disability (TTD) \nbenefits, from the time of full duty release without restrictions\n1\n through November 3, 2021. \n \n1\n The claimant’s pre-hearing questionnaire response noted that the claimant was released \nto full duty on May 24, 2021, and that he should be entitled to additional TTD benefits from \nthat day through November of the same year. The Pre-hearing Order reflected the same. At \nthe hearing, however, the medical evidence presented [Claimant’s Exhibit No 1 at 163-166 \nand Respondent’s Exhibit No 2 at 1-4] shows that the office visit that resulted in the \nclaimant’s release to full duty was on June 21, 2021. The hearing testimony squares with \n\nWASHINGTON- H009640  \n2 \n \n2.  When did the claimant reach the end of his healing period? \n3.  Whether the claimant is entitled to an impairment rating of five percent (5%) to the \nbody as a whole and Permanent Partial Disability (PPD) benefits pursuant to that rating. \n4. Whether the claimant is entitled to wage loss benefits. \n5.  Whether the claimant is entitled to a controverted attorney’s fee. \n6.  All other issues are reserved. \nThe parties’ CONTENTIONS, as set forth in their pre-hearing questionnaire responses, \nwere incorporate by reference into the Pre-hearing Order. The claimant contends: \n1.  That he suffered a compensable back injury on October 31, 2020, while turning a \nlarge valve. \n2. That the claim was accepted and medical and treatment and TTD were provided \nuntil May 24, 2021,\n2\n when Trent Tappan, PA-C, released him to full duty without \nrestrictions following an office visit and report of an incomplete Functional Capacity \nEvaluation (FCE). \n3.  That he sought treatment on his own from the VA, where he was seen until October \n2021. \n4.  That his last noted visit at the VA is the correct MMI date and that he is entitled to a \n5% impairment rating under the applicable AMA guides for a nonoperative soft tissue \nlesion under Table 75, § II.B. \n \nthe June 21 date also: “Q: ... Trent Tappan. He was with Dr. Bruffett’s office... released you \nfrom care at that point [on June 21], is that correct? Work. Comp. A: Yes. Q: All right. Then \nyou got treatment on your own with the Veteran’s Administration? A: Correct. Q: All right. \nSo from the FCE until the end of October... .” The May 24 date is apparently a scrivener’s \nerror, confusing the claimant’s month and date of birth, appearing at the top of the visit \nnotes (May 24), with the actual date of the visit resulting in his release from care.  \n2\n See FN1. \n\nWASHINGTON- H009640  \n3 \n \n5.  That when he returned to work, he had to take a lighter duty job, reducing his hourly \nrate from $32.00/hour to $28.00/hour, thus entitled him to wage loss. \n6. That the denial of these benefits entitles his attorney to a fee under ACA § 11-9-715.    \n7. That all other issues, including additional medical treatment, are reserved. \nThe respondents contend: \n1.  That the claimant has a history of prior low back problems and underwent a surgical \nlaminectomy at L5-S1.  \n2.  That he sustained a compensable lower back injury and was treated by Drs. Wilkins, \nSaer, and Bruffett. \n3.  That he underwent an FCE that reported an unreliable effort. \n4.  That he was released by Dr. Bruffett’s office to return to work with no restrictions \nand no impairment. \n5.  That he returned to full duty work and that he continues to work. \n6.  That they are unsure of his requested benefits. \n7.  That claimant’s presentation to the VA was unauthorized and that he received a \nForm N. \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed on October 31, 2020, when the \nclaimant sustained a compensable injury to his lower back. \n3.  The respondents accepted that injury as compensable and paid medical and \nindemnity benefits. \n4.  The claimant’s average weekly wage entitles him to the maximum compensation \nrates. \n\nWASHINGTON- H009640  \n4 \n \nIn addition to the Commission’s Exhibit, previously mentioned, three more exhibits \nwere entered into this record. Claimant’s Exhibit No 1 consisted of a four-page index of \nmedical records and 208 subsequent pages. Respondents’ Exhibit No 1 consisted of one (1) \nindex page and seven (7) pages of non-medical records. Finally, Respondents’ Exhibit No 2 \nconsisted of one (1) index page and four (4) pages of medical records, all of which were from \nthe June 21, 2021 appointment with PA-C Trent Tappan, a provider in Dr. Bruffett’s office. \nTwo witnesses provided sworn testimony—the claimant spoke on his own behalf and the \nrespondents called Ms. Tommie Arrington, an Evergreen employee and union official \nfamiliar with Mr. Washington’s eventual job reassignment. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law \nunder ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n2. The previously noted stipulations are accepted as fact. \n3. The claimant failed to prove by a preponderance of evidence that he is entitled to \nadditional TTD benefits. \n4. The claimant failed to prove by a preponderance of evidence that the appropriate \ndate of MMI with regard to his workplace injury was not consistent with the date of his \nJune 21, 2021 MMI placement and release to full duty without restrictions. \n5. The claimant failed to prove by a preponderance of the evidence that he is entitled to \nan impairment rating associated with his workplace injury. \n6. The claimant failed to prove that he is entitled to wage loss. \n7. Consistent with the above, the claimant’s attorney is not entitled to a fee. \n \n\nWASHINGTON- H009640  \n5 \n \nIII.  BACKGROUND and MEDICAL EVIDENCE \n On October 31, 2020, the claimant injured his back while working as a waste water \noperator at the respondent/employer’s paper mill and food packaging production facilities. \nHe testified that he worked in that role from around 2009 to the date of injury. Early in the \nmorning of his shift, the claimant was monitoring a number of pumping stations when an \nalarm notified him of a problem at one of the stations. Believing that the pump had lost its \nprime, Mr. Washington began a back-washing procedure to remedy that problem that \nrequired manually opening or closing a series of large valves. He stated that the valve \nhandwheels were about 20 inches across and two and one-half to three feet off the ground. \nWhile working one of the handwheels, the claimant testified, “all of the sudden that’s when \nI heard—I felt this pop in my back and I knew right then, I was like, ‘oh.’” He completed a \ncompany injury report around 4:25 AM, stating that he suddenly felt a sharp, pinching pain \nfrom his back to his calf when turning the valve around 2:15 AM. He rated the pain at 8 out \nof 10 at the time of the injury and 6 out of 10 at the time of the report. According to the \nclaimant’s testimony, he then remained off work for 367 days. \nA. Treatment Not with the VA \n Mr. Washington presented to the Baptist Health emergency department (ED) in \nLittle Rock just before 2:00 PM on November 2, 2020, complaining of low back pain \nradiating down his right leg. The ED record notes a history of lumbar surgery for bone spur \nremoval in 2017 and bulging discs. An Xray was ordered and a Toradol injection \nadministered. He was diagnosed with acute right-sided lower back pain with right-sided \nsciatica. No acute findings were noted on the Xray report, and he was discharged with \nprescriptions for cyclobenzaprine and naproxen. [Cl. Ex. No 1 at 8-16.] \n Prior to the work injury, the medical records reflect two visits to Jefferson Regional \nMedical Center’s Family Health Associates clinic in White Hall, Arkansas. The first was on \n\nWASHINGTON- H009640  \n6 \n \nOctober 28, 2019, to establish care. A history of arthritis and back surgery, joint surgery \nwas noted, along with a family history of arthritis. The second was on May 27, 2020, when \nhe complained of pain to his right side and hip rating 8 out of 10 after doing some yard \nwork. Home medications of cyclobenzaprine and ibuprofen were noted, and he noted some \nrelief from the same. [Cl. Ex. No 1 at 1-5.] \n Two days after his November 2, 2020 ED visit, the claimant presented to the Little \nRock Family Practice Clinic (LRFP), again complaining of back pain and pain down his \nright side. He was seen by Dr. John Jayroe, who administered intramuscular (IM) steroid \ninjections of Celestone Soluspan and Kenalog. The impression from that day’s radiology \nreport (from Radiology Associates, PA (“RAPA”)) was that of a negative exam, though Dr. \nJayroe assessed minimal degenerative changes, “retrolithesis of L5 on S1 with loss of disc \nheight,” and a “narrowing of the foramina at L4-L5.” His final diagnosis listed acute right-\nsided low back pain with right-sided sciatica. Physical therapy was recommended, along \nwith follow up for possible additional imaging if symptoms did not improve. [Cl. Ex. No 1 at \n17-20.] \n The claimant presented again to LRFP on November 16, 2020, with mostly the same \ncomplaints, but additionally complaining about intermittent muscle spasms in his gluteus. \nDr. Jayroe assessed acute back pain with radiculopathy, discussed physical therapy, and \nagain noted a possible MRI in the future. [Cl. Ex. No 1 at 24-26.] \n Thereafter, the claimant presented to Physical Therapy Plus in Pine Bluff, under \nthe care of Stuart Jones, PT, DPT. His rehab potential was listed as “good” at his initial \nvisit on November 30, 2020. The records reflect at least 11 subsequent physical therapy \nvisits over the month, with the last appearing to take place on December 28, 2020. Mr. \nWashington reported no change in his symptoms at that last visit. [Cl. Ex. No 1 at 27-46.] \n\nWASHINGTON- H009640  \n7 \n \n On December 8, 2020, during the course of his physical therapy visits, the claimant \nunderwent an MRI. RAPA’s report showed the following findings: \nThe signal intensity of the bone marrow is normal. Disc desiccation is present \nat all levels, particularly L4-5. The tip of the conus terminates at L1-2, which \nis within normal limits. \n \nL5-S1 displays no disc herniation or protrusion. Mild facet hypertrophy is \npresent. \n \nL4-5 with a mild broad-based posterior disc bulge. This mildly indents the \nanterior thecal sac. The AP diameter of the canal is 9mm. Moderate \nhypertrophy is present. \n \nL3-4 displays a mild broad-based posterior bulge. There is a left-sided \ncomponent that has an annular tear. Mild neural foraminal narrowing is \npresent. The AP diameter of the canal is 8 mm. \n \nL2-3 displays no disc herniation or protrusion. The neural foamen are patent \nbilaterally. The AP diameter of the canal is 9mm. \n \n[Cl. Ex. No 1 at 47.]  \n On December 30, 2020, two days after his last physical therapy visit, Mr. \nWashington presented to OrthoArkansas, where he was seen by Dr. Edward Saer. He \nreported his pain at 10 out of 10. The record reflects that he reported physical therapy \nstarting on November 15, 2020 (although he began therapy on November 30, 2020), and \nthat he’d previously received prescriptions for naproxen and Flexeril (for whatever reason, \nhe appears to have failed to report the three injections he’d received in the preceding \nweeks). His history of arthritis and lower back surgery were noted. Dr. Saer reviewed a new \nXray and the December 8, 2020 RAPA MRI. He assessed a probable lumbar strain or \nsprain, but did “not see 1 [one] focal finding that would explain all of his symptoms.” Mr. \nWashington was prescribed a steroid dosepak, Meloxicam, and Tramadol. Continued \nphysical therapy was also recommended. [Cl. Ex. No 1 at 48-53.] \n The claimant was seen again by Dr. Jayroe at LRFP the next day via telemedicine. \nThe imaging results were discussed, and gabapentin was prescribed. The progress note \n\nWASHINGTON- H009640  \n8 \n \nstated that Dr. Jayroe offered a referral for an interventional pain opinion and that Mr. \nWashington was scheduled with a new physical therapy provider per Dr. Saer’s referral. \n[Cl. Ex. No 1 at 55-56]. \n Mr. Washington then presented to Southeast Arkansas PT on January 6, 2021, with \nseven additional visits\n3\n over the next two weeks. His history noted arthritis and prior back \nsurgery, while the diagnosis was consistently listed as lumbago with sciatica, right side, \nmuscle wasting and atrophy. At his January 19, 2021 visit, the provider assessed some \nprogress and that the “[i]ssue is just pain down R[ight]L[ower]E[xtremity].” Ten more visits \nwere noted as authorized at that time, and he was to continue the then-current plan of care. \n[Cl. Ex. No 1 57-81]. \n The following day, on January 20, 2021, the claimant saw Dr. Saer again, who \nassessed no need for any surgery. “I suspect he has had a strain or sprain. He seems to be \nhaving a lot more pain with this [than] I would expect, however.” His pain was reported as \n7 out of 10. Continued physical therapy was recommended, along with a follow up visit in \nthree weeks. [C. Ex. No 1 at 83-86.] \n The claimant presented again to LRFP the next day. Minor symptom improvement \nwas noted. His then-current medications, relevant to this claim, were listed as Gabapentin \n(100 mg, 3x daily), Meloxicam (15 mg, 1x daily), and Tramadol (100 mg, Extended Release, \n1x nightly, PRN for pain). Dr. Jayroe assessed acute back pain with radiculopathy, unclear \netiology. In the same note, he charted, “[w]e will try taking 300 mg of Gabapentin at \nnighttime; have given him permission to titrate up to 500 mg daily at bedtime if he \ntolerates it.” The claimant was also to continue with Meloxicam and Tramadol. [Cl. Ex. No 1 \nat 87-88.] \n \n3\n The record reflects physical therapy visits on January 6, 7, 8, 11, 12, 14, 18, and 19, 2021. \n\nWASHINGTON- H009640  \n9 \n \n Then, on Monday, January 25, 2021, the claimant presented again to the Baptist \nHealth ED in Little Rock, complaining of worsening low back pain. He stated that he \naggravated the pain after doing “a lot more activity” than usual at his physical therapy \nappointment on the preceding Friday (which would have been January 22, 2021). The \nrecord before me, however, includes no physical therapy note corresponding with that day. \nThe ED notes reflect that he was given a Toradol injection and dispensed 15 tablets of \ncyclobenzaprine, 5 mg. Otherwise, the notes reflect “[n]o results found for this visit on \n01/25/21.” [Cl. Ex. No at 89-95.] \n Mr. Washington next presented again to Dr. Saer on January 27, 2021, complaining \nof increased pain, spasms, migraines, some nausea, some difficulty voiding urine and some \nmild constipation. His pain was reported as 7 out of 10. According to the notes, he was in a \nwheelchair, though no physician appears to have ordered the use of a wheelchair. His \nprevious MRI was reviewed, and Dr. Saer commented on “mild central stenosis with some \nelement of congenital narrowing.” The physician assessed that he was “not sure if \nsomething has changed or not in his back. I think we need to find out, and we need to \nrepeat the MRI.” An IM steroid injection and oral dosepak were given. [Cl. Ex. No at 96-\n104]. The MRI report showed “no acute fracture or aggressive marrow replacing process,” \nbut noted degenerative changes. The report concluded: \n1.  Moderate to sever spinal canal stenosis at L3-L4 secondary to \ncircumferential disc bulge and ligamentum flavum thickening. There is near \ncomplete effacement of the CSF surrounding the cauda and equina at this \nlevel. \n \n2.  Moderate facet arthropathy at L3-L4 with trace facet effusions, likely \nreactive. Mild neural foramen stenosis is also present. \n \n3.  Prior right hemilaminectomy changes at L5. Mild facet arthropathy at L5-\nS1 with mild bilateral neural foramen stenosis. Additional less pronounces \ndegenerative changes as above. \n \n[Cl. Ex. No 1 at 105.] \n\nWASHINGTON- H009640  \n10 \n \n Between February 8, 2021, and March 31, 2021, the claimant attended several more \nphysical therapy visits. [Cl. Ex. No 1 at 106-132.] On February 10, 2021, Dr. Saer ordered \nanother steroid injection. [Cl. Ex. No at 112.] Then, on April 12, 2021, he presented again to \nDr. Bruffett, whose note reflects that physical therapy had not been helpful and that the \nprevious injection by Dr. Cayme at L4-5 “was minimally of benefit.” Mr. Washington \nreported his pain as a 7 out of 10. Dr. Bruffett’s physical exam noted “no frank neurologic \ndeficits” or “upper motor neuron signs.” The MRI findings were noted, along with the \nclaimant appearing “a little down or depressed.” He charted the following assessment/plan: \nPostlaminectomy syndrome with stenosis now at L3-4 which may be \nsymptomatic. \n \nPlan is difficult to know the exact cause of his pain. I would recommend \nanother injection... Surgery would consist of a hemilaminectomy for spinal \nstenosis. My concern about surgery is that he does not have a specific disc \nherniation... I would only know that intraoperatively... maybe another \ninjection would help us...spoke to him about his degree of job satisfaction. I \nthink he likes his job, but he is not real thrilled about he folks that he works \nwith. \n \n[Cl. Ex. No 1 at 134-138.] Another steroid injection was administered on May 13, 2021. [Cl. \nEx. No 1 at 140]. \nMr. Washington returned to Dr. Bruffett on May 26, 2021, reporting again a pain \nrating of 7 out of 10. That visit note stated: \n... He has some stenosis at L3-4 and postsurgical changes at L5-S1 but \notherwise his MRI really does not show a specific disc herniation or obvious \nobjective evidence of injury... I have told him I think he is at maximum \nmedical improvement with regards to nonoperative treatment. But I really do \nnot think surgery is going to be all that rewarding... surgery is not a good \noption...I would recommend a functional capacity evaluation. \n \n[Cl. Ex. No 1 at 141-143.] \n\nWASHINGTON- H009640  \n11 \n \n The functional capacity exam (FCE) was conducted on June 14, 2021, by Functional \nTesting Centers, Inc., at their Pine Bluff facility.\n4\n Per the report, an FCE “evaluates an \nindividual’s capacity to perform work activities related to his participation in employment \nand consists of a comprehensive battery of performance-based tests that are commonly used \nto determine ability for work.” The Reliability and Consistency of Effort portion of the \nreport begins: \nConsistency of effort testing obtained during this evaluation indicate \nsignificant observational and evidence-based inconsistencies resulting in self-\nlimiting behavior and sub-maximal effort. The results of this evaluation \nindicate that an unreliable effort was put forth, with 37 of 50 inconsistency \nmeasures within expected limits. Analysis of the data collected during this \nevaluation indicates that he did not put forth consistent effort. He also had \nnumerous signs of non-organic symptoms when he participated in a series of \ntests to identify the presence of non-physiological signs of pain. He produced \npositive results for all of these tests given. The client also failed to produce a \nsignificant cardiovascular response to physical testing that would indicate \nthat a significant degree of effort was being put forth. The client’s walking \nwas not reliable for consistent effort. His walking pace slowed dramatically \nwhen he was aware of being timed and his pace was significantly faster as he \nwalked about the facility. It is also noted that he demonstrated a maximal lift \nof 20 lbs. during bi-manual dynamic lifting yet demonstrated the ability to \nlift and then carry up to 25 lbs. with just his RUE and just his LUE. He also \nhad pain reports that did not correlate with his movement patterns. His \nfrequent pain report of level 9-10\n5\n does not correlate with the description of \nthis level of pain provided to hi[m] and he failed to exhibit outward \ncompensatory movements. \n \nAnd under Functional Limitations, the report states: \nAlthough Mr. Washington reported and/or demonstrated numerous function \nlimitations during his evaluation, he also exhibited numerous inconsistencies \nwhich invalidated his entire evaluation. Therefore, his current functional \nstatus remains unknown at this time due to his failure to produce sufficient \nobjective data to substantiate his reported and/or demonstrated limitations. \n \n \n4\n Although the record does not reflect that the use of a cane was ordered by a treating \nphysician, the claimant arrived for testing with a cane in his left hand. [Cl. Ex. No 1 at 151.] \n5\n The pain scale utilized during testing rates a pain level of 9 as “Excruciating, Unbearable, \nYou are unable to get out of bed on most days even with medication. You cry and moan \nuncontrollably.” While a pain level of 10 is described as “Worst pain imaginable; I’m \nunconscious due to pain.” \n\nWASHINGTON- H009640  \n12 \n \nThe report’s conclusion included: \nMr. Washington completed functional testing on this date with unreliable \nresults (emphasis in original).... Since the results indicate an unreliable \neffort, his actual abilities could be higher than that demonstrated \nduring this evaluation. The overall results of this evaluation do not \nrepresent a true and accurate representation of this client’s overall \nphysical capabilities (emphasis in original). \n \n[Cl. Ex. No 1 at 145-147.]  \nSeveral specific inconsistencies, noncompliance, or malingering behaviors were \nnoted throughout the report. His pace slowed significantly when he was aware of being \ntested, he took breaks after every 20 feet of walking, and refused a final repetition of a \nwalking evaluation.\n6\n None of his lumbar flexion, extension, or lateral flexion results were \nvalid, and he was observed picking an accidentally dropped item off of the floor in a manor \nnot consistent with his formally measured range of motion testing.\n7\n He exhibited \nexaggerated pain behaviors at light touches and reported muscle spasms when no visible or \npalpable signs of spasm were present.\n8\n He reported a pain level of 9-10\n9\n after lifting, \nalthough his visible pain behaviors did not correlate to the same, nor did his heart rate.\n10\n \nHe stopped a frequent lifting evaluation before completion and refused to attempt two out \nof three cycles of a second walking evaluation.\n11\n After nearly four hours of activity and \nevaluation, often reporting intense pain, his heart rate and blood pressure (85 BPM, \n140/85) were nearly identical to his pre-testing readings (84 BPM, 140/87).\n12\n Mr. \nWashington left the facility at a “significantly faster pace than that exhibited throughout \n \n6\n See Cl. Ex. No 1 at 152. \n7\n Id. \n8\n Id. at 153. \n9\n See FN 5. \n10\n Id. at 154. \n11\n Id. at 161. \n12\n Id. at 151, 161. \n\nWASHINGTON- H009640  \n13 \n \ntesting,” and when walking the approximately 70 feet out of the facility, he no longer \nneeded breaks every 20 feet or so.\n13\n  \nThe report concludes with observations on his reported post-exertional pain: \nMr. Washington reports that his post-test pain level is a “9-10,” which is the \nsame level of pain that he experiences when performing activities at home... \nDuring the exit interview after reporting a 9-10 pain he continued to sit and \nsmile and laugh with the evaluator, which does not correlate to his voiced \nsevere pain at a numerical pain level of 9-10. He made no complaints or made \nrefences to any pain or any symptoms which were not related to the condition \nhe was referred form. He also reported no new or difference [sic] areas or \nregions of pain that he wasn’t experiencing at the start of his evaluation. He \nreported that the pain he experienced today is similar to his daily pain. \n \n[Cl. Ex. No 1 at 162.] \n Following the FCE the claimant returned again to Dr. Bruffett’s office for a 9:00 AM \nappointment on June 21, 2021, where he was seen by Trent Tappan, PA-C. The notes from \nthat visit are not inconsistent with previous visits. He reported his pain at 8 out of 10. \nPrevious notes and scans were reviewed, with spinal stenosis of lumbar region and post-\nlaminectomy syndrome listed in the assessment. Regarding the FCE and Mr. Washington’s \nability to return to work, the note stated, “Mr. Washington did not have reliable results on \nhis functional capacity exam. Therefore I have no restrictions to place upon him. I am going \nto release him today without any restrictions. Placement [at] maximum medical \nimprovement. No impairment to calculate.” Tappan’s encounter note was reviewed and \nsigned at 10:14 AM. Consistent with the encounter note, his return to work slip provided, \n“[r]eturn to full duty, no restrictions.” [Cl. Ex. No 1 at 163-167.] \nB. VA Treatment \n The claimant presented to the VA on February 2, 2021, after calling in on January \n29, 2021, with a report of chronic back pain. He reported that his medication had made him \n \n13\n Id. at 162. \n\nWASHINGTON- H009640  \n14 \n \nnauseous and that it was no longer relieving symptoms. The provider noted, “advised \nveteran to follow up with specialist who ordered the medication and discuss symptoms with \nthem. Advised it is best NOT (emphasis in original) to have several providers managing the \nsame symptoms due to possible conflicting therapies or not having all the information to \ntreat effectively.” [Cl. Ex. No 1 at 167.] \nAccording to a June 8, 2021 progress note (six days prior to his FCE),\n14\n the claimant \nwas seen that day for bilateral knee pain. He stated that he “occasionally” (emphasis \nadded) experienced low back pain and that he was experiencing “generalized weakness and \npain since he has been out of his job when the COVID started (emphasis added) and believes \nhis pain has gotten worse after he started resting more.” Under the “Active Non-VA \nMedications” tab, he apparently reported none of the medications listed on his visits with \nother providers before or after his FCE. The same note included, “Lumbar Spine Exam: \nSkin is normal looking, Tenderness absent along L4-L5-S1 spinous processes and absent on \nSI joint, Paraspinal spasm absent... .” [Cl. Ex. No 1 at 169-172.] \n It appears Mr. Washington presented again to the VA’s ED June 21, 2021 (the same \nday as his release from Dr. Bruffett’s office), sometime before 11:30 AM. [See, generally, Cl. \nEx. No 1 at 173-179]. He reported his pain at 9 out of 10 [Cl. Ex. No 1 at 175] and a \n“longstanding hx of back pain and he is concerned that he should not be working due to \nsymptoms. Seen in ER today for radiculopathy, CT shows spondylosis. He has a hx of back \nsurgery. He asked me if he should be working. Advised him I had no authority to tell him \none way or the other.” [Cl. Ex. No 1 at at 179.] He received IM injections of Toradol and \nKenalog.  Imaging from that day showed the following relevant findings: \nDegenerative:  The lumbar canal appears congenitally narrow. \n \n14\n According to the pagination from the facility producing the VA records, they are not \npresented in the exhibit in an order correlating with that pagination. Some notes, therefore, \nappear incomplete in places. \n\nWASHINGTON- H009640  \n15 \n \n \nL2/L3:  Disc Bulge effaces with ventral thec sac. Facet arthropathy. Mild to \nmoderate canal stenosis. No significant foraminal stenosis. \n \nL3/L4:  Disc bulge effaces with ventral thecal sac. Facet arthropathy. \nModerate canal stenosis. Mild bilateral foraminal stenosis. \n \nL4/L5:  Disc bulge effaces the ventral thecal sac. Facet arthropathy and \nligamentum flavum thickening. Severe spinal canal stenosis. Mild bilateral \nforaminal stenosis. \n \nL5/S1:  Postsurgical change of the right lamina. Minor bulging of the \nannulus. Facet arthropathy. No significant canal stenosis. Mild bilateral \nforaminal stenosis. \n \nImpression:  No fracture or traumatic subluxation. \nCongenital lumbar canal stenosis with superimposed spondylosis resulting in \nmoderate canal stenosis L3/L4, suspected severe spinal canal stenosis L4/L5. \n \nMild to moderate canal stenosis L2/L3. \n \nVarying degrees of neural foraminal stenosis as described. \n \nPostsurgical change of the right lamina L5/S1.  \n \n[Cl. Ex. No 1 at 180-182.]   \n A telephone encounter followed a few days later. The June 24, 2021 note states: \n“... c/o years of LBP with radiation to the left leg and right hip. Hx lumbar back surgery in \n2017... Veteran does not recall initial injury that caused pain and unsure if service related.” \n[Cl. Ex. No 1 at 184 (emphasis added).]    \n The VA records noted above, as well as additional records provided by the claimant, \nrelate to various complaints about back and knee pain. \nIV.  HEARING TESTIMONY                                                                                                         \nA. Claimant on Direct Examination by Mr. McNeely \nMr. Washington testified that after graduating high school in 1986, he entered the \nArmy in December of that year. He worked as a truck driver and petroleum specialist \nbefore ending his time in service in 1989. He worked a handful of other jobs before \n\nWASHINGTON- H009640  \n16 \n \nbeginning with the respondent-employer in 2008, when he was initially hired as an off-\nmachine coder, before transferring to the Lab divisions Technical Services department. He \ndescribed the job as testing and quality control work. \n At the time of his workplace injury, his title was waste water utility/lift operator. He \ndescribed monitoring a series of pump stations where water is moved from treatment pond \nto treatment pond and sampling the water to ensure it is safe for release into the river. \nAccording to his testimony, he recovered fully from a lumbar procedure in 2017 and was \nable to do “everything and anything.” He went on to claim that he “pretty much” worked \n364 days a year, only taking off for his mother’s birthday. \n Mr. Washington was working the graveyard shift in the early hours of October 31, \n2020, when an alarm signaled a problem at one of the pump stations. He was familiar with \nthe pumps losing pressure and performing a procedure to back-wash the pipes and reprime \nthe pumps. This consisted of opening and closing various large valves. While turning a \nvalve handwheel about 20 inches wide and two and a half to three feet off the ground, he \nheard a pop in his back. He reported the injury and received some OTC medication. \n“Ibuprofen or something like that or Tylenol or something,” he said. \n He went on to describe worsening pain in his lower back that radiated down to his \ncalf, seeking medical attention, and eventually staying off work for 367 days. The claimant \ndescribed some temporary relief from an injection at some point, but said that the \nsymptoms persisted. \n Mr. Washington recalled presenting for an FCE on June 14, 2021. According to his \ntestimony, “I was advised to give it my all; and so, I did the very best I could do. I did—in \nmy opinion, I did really well, considering the amount of pain and the amount of tests that \nthey put you through. I did it so well... .” [TR. at 21-22.] The claimant offered that his \ncondition probably worsened after the testing, but agreed that he was released by Dr. \n\nWASHINGTON- H009640  \n17 \n \nBruffett’s office shortly after the testing and that he then sought treatment on his own from \nthe VA.\n15\n  \n He briefly described his condition improving after some treatment at the VA before \nmoving on to the circumstances around his returning to work. Referencing Respondent’s \nExhibit No 1 at 5, Mr. Washington spoke about receiving a conditional job offer refusal \nletter in the mail around August of 2021. According to the testimony, the waste water job, \nin the organizational/reporting sense, was being moved from the Lab department to the \nEnvironmental department, and he was given the option to move with the job to the \nEnvironmental department or seek placement, as might be available, elsewhere with the \ncompany. As evidenced by his signature, dated August 20, 2021, on the letter, Mr. \nWashington declined the offer to stay with his old job under the new organizational \nstructure. He was still not working at the time, but eventually did return to Evergreen on \nNovember 3, 2021.  \n Upon his return to work, Mr. Washington took on the role of a “relief worker,” \ncovering for others in various jobs when they were unable to cover their shifts. The new job \npaid less (“[the previous job], that was 32 [dollars] and some change [per hour]... that job \nthat I’m working now, it was 27 [dollars] and 66 [cents] or something like that...”). When \nasked why he chose to switch jobs, he stated, because it’s a lot less strenuous and I think, I \nhave longevity.” Despite the change in jobs, Mr. Washington went on to say that he lives \nwith back pain every day. \n \n \n \n15\n See TR. at 10 (Howe: “... Claimant did go to the VA and [that] medical treatment was \nunauthorized and a Form N was provided to the Claimant.” Frye: “... am I understanding \nthat the Claimant is conceding that the medical at the VA is not authorized?” McNeely: \n“That is correct, Your Honor. That’s not an issue for the Court.”). \n\nWASHINGTON- H009640  \n18 \n \nB. Claimant on Cross Examination by Mr. Frye \n Mr. Washington recalled testifying at his deposition that has a history of knee \nproblems and that had applied for VA disability relating to his left hand and left knee. \nRegarding his knees, he stated, “[i]t’s arthritis, stiffness, maybe, pain and stiffness,” that \nwould cause problems standing, walking, and stooping during flare ups. Medications for his \nknees included NSAIDs and muscle relaxers. The claimant agreed that medical records \nreflected a May 27, 2020 physician visit where he was prescribed NSAIDs and muscle \nrelaxers for pain in his right hip and leg. \n Reviewing the pertinent medical records, the claimant agreed that the notes \nreflected a possible strain or sprain associated with his back pain. Referencing a physician’s \nobservation about job satisfaction and his not appearing to like the people he worked with, \nMr. Washington responded that he did not have to like the people I work with. \n Regarding the FCE, Mr. Washington stated, he had not reviewed the report. At his \ndeposition, the claimant explained that was skeptical about the FCE and its reporting. He \ntestified at the hearing, “Yeah. Yeah, I still feel the same way to this day. No matter how \nthat—how I performed in that test, his outcome or, yeah, it was going to be—it wasn’t going \nto give me any credit, because I did a really good job doing that. I tried. I really gave an \neffort...Nobody read that he [the claimant] drug this across the room. I don’t think that’s in \nthere.” [TR. at 40.] When asked about the FCE report indicating that his walk and gate \nchanged during known versus unknown periods of observation, he responded, “I’m not \naware that I did that. I’m sorry. ... If you want me to explain it, maybe... because the room \nain’t big enough.” \n Mr. Washington confirmed that Dr. Bruffett’s office released him without any \nrestrictions and that he similarly received no work restrictions from the VA. Additional \nquestions and responses related to what the medical records reflected. \n\nWASHINGTON- H009640  \n19 \n \n Mr. Frye then moved on to the job reassignment issue, asking, “from what I \nunderstand the job in the Lab was transferred over to Environmental Services, is that \ncorrect?” Mr. Washington confirmed that and that he spoke with Evergreen employee and \nunion representative Tommie Arrington about declining the conditional job offer: \nQ:  Did you tell her that it was because of physical restrictions? \nA:  If I did, that would be the reason why. Yes, sir. \nQ:  That’s not what I asked you. I asked you, did you give her that reason for \ndeclining the job? \nA:  Yes, sir. I believe that’s right. \nQ:  Okay. Would you agree with me that you already expressed to Dr. \nBruffett’s office a job dissatisfaction and that this lines up with that; that you \ndid not like the job? \nA:  I don’t like getting up and going to work every day, but I do it. I’m sorry. \nI’m sorry. \nQ:  Well, guess what? I don’t either. \nA:  I don’t miss a day of work. That don’t mean I got to love it. I’m sorry, but \nthat—that—that’s just people. We don’t—we work because we have to. \nQ:  Okay. \nA:  I’m sorry. \nQ:  But you chose one job over the other, is that correct? \nA:  Yes, sir. I was given a choice. \nQ:  All right. And that was your choice, and you made the choice, correct? \nA:  That’s correct. \n... \nQ:  And at this point, we’re here and you do not have any functional \nrestrictions from the VA, Dr. Sayer, or Dr. Bruffett, correct? \nA:  That’s correct. \n \n[TR. at 48-49.] After Mr. Frye completed his cross examination, Mr. McNeely rested for the \nclaimant, subject to reserving the right to possibly recall Mr. Washington for rebuttal. \nC. Evergreen Employee and Union Representative Tommie Arrington  \n \n Ms. Arrington was then called by the respondents. She stated that she was \nemployed as a Day Shift Operator for the Environmental Department, where she was \nresponsible (as earlier described by Mr. Washington when he was in that role) for handling \nthe plant’s waste water and ensuring it was safe for release from the plant. She went on to \nexplain the job and the change in reporting structure. Four employees were impacted by the \nrestructuring, and Mr. Washington declined the move, along with two other employees. She \n\nWASHINGTON- H009640  \n20 \n \nexplained how different pay rates are set for employees in different roles. Specifically \nregarding the claimant’s decision to move jobs, she stated that he did not indicate that his \ndecision was based upon any physical limitations, and she was aware of no restrictions on \nhis activities at the time. She offered that upon seeing Mr. Washington at work from time \nto time, he seemed fine, was just working, and made to complaints to her about any \nphysical capabilities. \n After a brief cross examination and re-direct, Ms. Arrington concluded her \ntestimony. The entire record was incorporated by reference and the matter was submitted \nfor adjudication of the issues presented. \nV.  ADJUDICATION \n The stipulated facts, as agreed during the pre-hearing conference, are outlined \nabove. Additionally, the claimant verified at the hearing that his treatment with the VA \nwas not authorized under AWCC rules. See FN 15. \nA.  Temporary Disability and MMI \nTemporary total disability (TTD) is that period within the healing period in which \nthe employee suffers a total incapacity to earn wages. See Ark. State Hwy. Dept. v. \nBreshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period is “that period for \nhealing of an injury resulting from an accident.” Ark. Code Ann. § 11-9-102(12) (emphasis \nadded). The healing period continues until the employee is as close to restored as the nature \nof the injury will permit, and if the underlying condition causing the incapacity has become \nstable and no further treatment will improve that condition, then the healing period is \nended. See Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). Temporary \ntotal disability benefits are not to be awarded after the healing period is ended. See \n\nWASHINGTON- H009640  \n21 \n \nMilligan v. West Tree Service, 57 Ark. App. 14, 946 S.W.2d 697 (1997). Whether the healing \nperiod is ended is a question of fact for the Commission. See Harvest, supra. \n I do not find that the claimant is entitled to any TTD benefits beyond what the \nrespondents have already paid. The claimant was originally seen for a suspected muscle \nstrain or sprain in his lower back. As evidenced throughout his multiple visits afterwards, \nhis complaints, the imaging results, and his in-office discussions with providers focus on the \nchronic, congenital, and/or degenerative conditions of his spinal process and not on \ncontinuing troubles with a strained or sprained muscle. Arthropathy, disc dessication, \nstenosis, postlaminectomy syndrome... all were noted on imaging reports, and none were \ncausally linked to turning a valve while at work. Even before his June 21, 2021 release, Dr. \nBruffett mentioned that the claimant was likely already at MMI with regard to any \nnonoperative treatment, though he did not feel surgery was a good option either. It is \nunclear whether Dr. Bruffett, at that time, was speaking directly to the October muscle \ninjury or the ongoing degenerative problems. Regardless, the claimant failed to provide \nevidence that he was entitled to any TTD beyond his eventual release date of June 21, \n2021, when he apparently left Dr. Bruffett’s office and contacted the VA, hoping for some \ndiffering opinion on whether he should be released to work. The VA provider appropriately \nadvised that she “had no authority to tell him one way or the other.” That advice was \nconsistent with earlier instructions from the VA that “it is best not to have several \nproviders managing the same symptoms due to possible conflicting therapies.”  \nAccording to the June 8 VA note, the claimant experienced only occasional low back \npain since COVID started and he was more sedentary. His medications were not \nconsistently reported to providers, and his physical exam on June 8 revealed no tenderness \nin his back or SI joint. He later stated that he had experienced years of back pain, did not \n\nWASHINGTON- H009640  \n22 \n \nrecall any particular injury responsible for it, and was unsure if that pain was service-\nrelated. \n The June 14 FCE report clearly indicated an unreliable effort on the claimant’s part \nduring his evaluation. An unreliable effort alone may not seriously call one’s credibility into \nquestion. But (1) his skepticism about the objectivity of the testing, (2) his differing \nbehaviors under known vs. unknown observation, (3) his insisting that his pain should be \nrecorded as 9-10 throughout testing (under a scale that would rate a pain level of 9 as \n“Excruciating, Unbearable, You are unable to get out of bed on most days even with \nmedication. You cry and moan uncontrollably” and a pain level of 10 as “Worst pain \nimaginable; I’m unconscious due to pain.”) while laughing and carrying on with the \nevaluator, and (4) his denying any new or different pain or soreness from half-a-day’s worth \nof physical exertion after months of self-reported inactivity... all of those do call into \nquestion his credibility. I am assigning greater evidentiary weight to the objective clinical \nfindings that support his release to work without restrictions than to the claimant’s own \nsubjective claims that his MMI date should be some time later than June 21, 2021. \n  Placement at MMI and a release to full duty without restrictions were appropriate \nand supported by the medical evidence. The claimant failed to prove by a preponderance of \nevidence that his healing period extended beyond his release without restrictions by Dr. \nBruffett’s office on June 21, 2021. The claimant’s healing period for a muscle strain likely \nended far earlier, but it certainly ended no later than June 21, 2021. He is, therefore, not \nentitled to TTD benefits between June 21, 2021, and his return to work on November 3, \n2021. \n B.  Impairment Rating and Wage Loss Claims \n Arkansas law provides that a determination of the existence or the extent of a \nphysical impairment shall be supported by objective and measurable findings. Ark. Code \n\nWASHINGTON- H009640  \n23 \n \nAnn. § 11-9-704(c)(1)(B). Objective findings are those that are not under the claimant’s \nvoluntary control. Ark. Code Ann. § 11-9-102(16)(A)(i). Mere complaints of pain may not be \nconsidered when determining an impairment rating. Ark. Code Ann. § 11-9-\n102(16)(A)(ii)(a). Specifically regarding ratings to the spine, straight-leg-raising tests and \nrange-of-motion tests shall not be considered objective findings. Ark. Code Ann. § 11-9-\n102(16)(A)(ii)(b).  Additionally, medical opinions on compensability and permanent \nimpairment must be stated within a reasonable degree of medical certainty. Ark. Code Ann. \n§ 11-9-102(16)(B) (emphasis added). \n Dr. Bruffett’s office did not assign an impairment rating, and the claimant presented \nno medical evidence at the hearing in support of the requested 5% impairment rating. He \nis, accordingly, not entitled to an impairment rating or PPD benefits. \n The claimant also failed to prove by a preponderance of the evidence that he is \nentitled to any wage loss. “To be entitled to any wage-loss disability in excess of permanent \nphysical impairment, a claimant must first prove, by a preponderance of the evidence, that \nshe sustained permanent physical impairment as a result of a compensable injury.” Wal-\nMart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000) (citing Smith v. Gerber \nProds., 54 Ark. App. 57, 922 S.W.2d 365 (1996)). “In considering claims for permanent \npartial disability benefits in excess of the employee's percentage of permanent physical \nimpairment, the Workers' Compensation Commission may take into account, in addition to \nthe percentage of permanent physical impairment, such factors as the employee's age, \neducation, work experience, and other matters reasonably expected to affect his or her \nfuture earning capacity.” Ark. Code Ann. § 11-9-522(b)(1). \n However, “any consideration of ‘the employee's age, education, work experience, and \nother matters reasonably expected to affect his earning capacity’ may not occur until the \n\nWASHINGTON- H009640  \n24 \n \nCommission has first determined ‘the percentage’ of permanent physical impairment.” \nWal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 479, 10 S.W.3d 882, 884 (2000). \n As the claimant failed to prove that he is entitled to an impairment rating, his claim \nfor any wage-loss benefits must also fail. \n C.  Attorney’s Fee \n In accordance with the above, the claimant is not entitled to an attorney’s fee. \nVI.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis denied and dismissed. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H009640 JAMES WASHINGTON, EMPLOYEE CLAIMANT EVERGREEN PACKAGING, EMPLOYER RESPONDENT ACE AMERICAN INSURANCE Co., CARRIER RESPONDENT ESIS, Inc., TPA RESPONDENT OPINION FILED APRIL 4, 2023 On hearing before Arkansas Workers’ Compensation Commission (AWCC) ...","fetched_at":"2026-05-19T23:08:14.389Z","links":{"html":"/opinions/alj-H009640-2023-04-04","pdf":"https://labor.arkansas.gov/wp-content/uploads/WASHINGTON_JAMES_H009640_20230404.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}