{"id":"alj-H101762-2023-05-25","awcc_number":"H101762","decision_date":"2023-05-25","opinion_type":"alj","claimant_name":"Richard Horn","employer_name":"Harris Co. Of Fort Smith","title":"HORN VS. HARRIS CO. OF FORT SMITH AWCC# H101762 MAY 25, 2023","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["fracture","back","wrist","carpal tunnel"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/HORN_RICHARD_H101762_20230525.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HORN_RICHARD_H101762_20230525.pdf","text_length":20333,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H101762 \n \nRICHARD HORN, Employee CLAIMANT \n \nHARRIS CO. OF FORT SMITH, Employer RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED MAY 25, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  March  2,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on  January  9,  2023,  and  a  Pre-hearing \nOrder  was  filed  on  January  10,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a 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. The relationship of employee-employer-carrier existed between the parties on February \n3, 2021. \n 3. The claimant sustained a compensable injury to his  left hand on or  about February 3, \n2021. \n\n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $411.00 for temporary total disability benefits. \n 5. The claimant is entitled to temporary total disability benefits currently and through the \nundisputed  surgical  portion  of  the  surgery  recommended  by  Dr.  Kelly  and  its  reasonable  and \nnecessary aftercare or the claimant’s return to employment. \n By agreement of the parties the issues to litigate are limited to the following: \n1. Whether Claimant is entitled to additional medical treatment for his compensable left-\nhand injury in the form of surgery as recommended by Dr. Kelly. \n Claimant’s contentions are: \n“Claimant  contends  that  the  Respondents  have  failed  and  refused \nto  authorize surgery  recommended  by  Dr.  Kelly  and  that  the \nCommission   should   order   the   Respondents   to   authorize   said \nsurgery  since  it  is  reasonably  necessary  treatment  in  regard  to  the \nClaimant’s admittedly compensable injury.” \n \n Respondents’ contentions are: \n \n“Respondents   have   approved   the   surgical   recommendation   as \nmodified for related condition to the work injury. Claimant has not \nundergone   the   approved   surgery   as   modified.   The   unrelated \ntreatment  for  other  conditions  is  not  reasonable,  necessary  or \nrelated to the work injury.” \n \n The claimant in this matter is a 41-year-old male who sustained a compensable injury to \nhis left hand on February 3, 2021. The claimant testified on direct examination that his hand was \ncrushed  between  two  pieces  of  metal  pipe  and  that  he  began  to  see  Dr.  Robert  Taylor.  The \nclaimant underwent three surgeries at the hands of Dr. Taylor. His first surgical intervention was \nFebruary  4,  2021,  the  day  after  the  claimant’s  crush  injury.  The  operative  report  found  at \nClaimant’s Exhibit 1, page 1, states in part as follows. \n\n \n-3- \nPREOPERATIVE   DIAGNOSIS:   Left   middle   finger   middle \nphalanx fracture, displaced, comminuted and open. \n \nPOSTOPERATIVE   DIAGNOSIS:   Left   middle   finger   middle \nphalanx fracture, displaced, comminuted and open. \n \nPROCEDURE: Open reduction and K-wire fixation of left middle \nfinger middle phalanx fracture. \n \n The  claimant  gave  direct  examination  testimony  about  the  results  of  his  first  surgery  as \nfollows. \n  Q So how did that work out? \n \n  A Man, after he - - well, after he took the wire out and my \n  finger - - he had my finger done up.  It was just a stiff finger, you \n  know.  And he had it together, but it was a stiff finger.  It hurt.  It \n  was numb all the time, you know. \n \n  Q So your finger was just stuck straight out? \n \n  A Yes. \n \n  Q And you couldn’t bend it or anything? \n \n  A Correct.  It was stuck straight out like this. (indicating). \n \n \n On April 1, 2021, the claimant underwent a second surgical intervention at the hands of \nDr.  Taylor.  Following  is  a  portion  of  that  operative  report  found  at  Claimant’s  Exhibit  1,  page \n10.  \nPREOPERTIVE  DIAGNOSIS:  Stiff,  painful  left  middle  finger, \nstatus post previous crush injury. \n \nPOSTOPERATIVE DIAGNOSIS: Same. \n \nOPERATION: Ray amputation of left middle ray. \n \n At  the  hearing  in  this  matter  the  claimant  gave  direct  examination  testimony  about  his \nsecond surgery in which his middle finger was amputated as follows. \n\n \n-4- \n  Q Was it your hope that you would get more function out \n  of your hand if you went ahead and followed the doctor’s advice? \n \n  A Yes, sir. \n \n  Q And as a result of that surgery, that entire finger was  \n  amputated? \n \n  A Yes, sir. \n \n  Q Now, if a person looks at their hand, they actually have \n  knuckles in their fingers. \n \n  A Correct. \n \n  Q Now, on that third finger, that long finger that you got \n  amputated, was it actually amputated at the knuckle or past the \n  knuckle? \n \n  A In my hand? \n \n  Q Now, when you say in your hand, if you bend your hand  \n  and you’ve got knuckles across the top of your hand. \n \n  A Yes. \n \n  Q How far back behind where those knuckles are would you \n  say that amputation was? \n \n  A Over halfway. \n \n  Q Over halfway up the back of your hand? \n \n  A Yes, sir.  Right there (indicating).  Do you want to see? \n \n  Q No, I don’t want to see it.  You can tell me. \n \n  A Okay. \n \n  Q So if you put your finger where that amputation occurred \n  on the back of your hand. \n \n  A Yes. \n \n  Q And you turn it over and look in the front of your hand, \n\n \n-5- \n  where in the front of your hand would that be?  If you drilled a \n  hole through there, where would the hole come out? \n \n  A (Indicating), right there. \n \n  Q Now, when you say right there, you are pointing to the \n  palm of your hand? \n \n  A Yes, (indicating). \n \n  Q Okay.  So how did that work out for you? \n \n  A It didn’t.  It was worse for me.  I got numbness and it - - \n  I have pressure on my hand.  It gets numb all the time.  And my \n  hand cramps up all the time.  I can’t hold nothing.  I can’t grip \n  nothing. \n \n  Q Did you have any problems like that before you got hurt? \n \n  A No, sir.  No, sir. \n \n On  September  28,  2021,  the  claimant  underwent  a  third  surgery  at  the  hands  of  Dr. \nTaylor. Following is a portion of the report of that operation found at Claimant’s Exhibit 1, page \n20. \nPREOPEATIVE    DIAGNOSIS:    Status    post    left    third    ray \namputation and hand pain. \n \nPOSTOPERATIVE  DIAGNOSIS:  Same  plus  relaxation  of  deep \ntransverse metacarpal ligament repair. \n \nOPERATION:   Left   third   ray   transverse   metacarpal   ligament \nrepair. \n \n The claimant was questioned on direct examination about this third surgical intervention \nas follows. \n  Q What did they do on that surgery? \n \n  A His surgery didn’t work, so he opted to open me back up \n  again. \n \n\n \n-6- \n  Q Opened your hand back up? \n \n  A Yes. \n \n  Q And what did he do? \n \n  A He put a permanent suture in there to hold my hand \n  together. \n \n  Q Well, when you were showing your hand a few minutes \n  ago, it didn’t look like it was together. \n \n  A No, sir. \n \n  Q So what happened after the third surgery? \n \n  A It didn’t work and he released me and said, “That is \n  all I could no.”  I had to find somebody else. \n     \n On  November  10,  2021,  Dr.  Taylor  released  the  claimant  from  care.  A  medical  record \nfrom Dr. Taylor regarding the claimant found at Respondent’s Exhibit 1, page 15, states in part \n“Status  post  six  weeks  out  from  repair  of  his  deep  intermetacarpal  volar  ligament.  He  is  doing \nwell. It is healing up and looks good. He has good range of motion. I am going to probably turn \nhim loose today and I will see him back if he has a problem.” \n The  claimant  sought  and  received  a  Change  of  Physician  from  the  Commission  in  this \nmatter  from  Dr.  Taylor  to  Dr.  James  Kelly.  The  claimant  has  been  seen  by  Dr.  Kelly  on  two \noccasions,  April  25,  2022,  and  June  1,  2022.  Dr.  Kelly  authored  a  letter  to  the  respondent \nregarding his April 25, 2022, visit with the claimant. The body of that letter follows. \nThank you very much for referring Richard Horn for consultation. \nAs  you  are  aware,  he  is  a  40-year-old  construction  employee  who \nworked  for  Harris  Company  at  Fort  Smith.  He  had  a  crushing \ninjury to his left middle finger on 02/02/2021. He had fractures of \nthe  3\nrd\n  finger.  He  was  taken  to  the  operating  room  by  Dr.  Robert \nTaylor  in  Rogers  Arkansas  on  02/04/2021.  He  had  debridement \nand  pinning  of  a  left  D3  P2  fracture.  He  also  had  an  A4  pulley \nrepair.   Once   this   healed,   he   had   stiffness   in   the   finger.   For \n\n \n-7- \nwhatever reason, at that point, once the hand healed Dr. Taylor had \nopted  to  do  a  ray  amputation  rather  than  reconstructing  the  long \nfinger.  I  asked  the  client  and  there  was  no  discussion  of  possible \njoint  replacements  or  tenolysis/capsulotomy.  Needless  to  say  he \nended  up  with  a  ray  amputation  of  the  3\nrd\n  ray.  He  did  not  have  a \nD2  metacarpal  transfer.  This  left  with  him  with  the  typical  gap \nopening in the palm and scissoring of the fingers when he makes a \nfist. This is a classic deformity for this type of ray amputation. He \nis also complaining of some numbness in the hand especially in the \nexaggerated web space but also in all of his fingertips including the \nthumb. \n \nIn  examining  him,  he  has  the  widening  of  the  palm  where  he  has \nobjects will fall through the between the 2\nnd\n and 4\nth\n fingers he also \nhad  a  positive  Tinel’s,  Phalen’s  and  compression  test  at  the  wrist. \nHe had blunted sensation in the median distribution of the hand. \n \nI  am  recommending  that  we  get  EMG/NCV  studies  completed  on \nhim.  I  will  see  him  back  once  these  have  been  completed.  I  have \ndiscussed  briefly  with  him  metacarpal  transfer  to  help  with  the \nfunctional use of his hand as well as probably, carpal tunnel release \nas well as possible exploration of the common digital nerves which \nmay  be  also  either  directly  injured  or  scarred  down  causing  him \nsensory  issues  in  the  hand.  I  will  see  him  back  here  in  the  office \nonce  the  nerve  study  has  been  completed  and  make  appropriate \nrecommendations there afterwards. \n \n On May 16, 2022, the claimant underwent an EMG of his left hand by Dr. Miles Johnson \nat the recommendation of Dr. Kelly. Following is a portion of that diagnostic report. \nSUMMARY:  Left  median,  radial,  and  ulnar  motor  studies  are \nnormal.   Left   median   ulnar   orthodromic   latency   difference   is \nnormal.  Medial  and  ulnar  antidromic  sensory  responses  to  the \nfourth  digit  were  normal.  Left  radial  sensory  response  to  the  first \ndigit was normal. Median sensory response of the second digit was \nnormal.  EMG  examination  of  the  left  upper  extremity  is  within \nnormal limits. \n \n On June 1, 2022, the claimant was again seen by Dr. Kelly. Following is a portion of that \nprogress note. \nMr.  Horne  presents  to  the  office  today,  he  underwent  EMG/NCV \nstudy  on  his  left  upper  extremity.  EMG  study  was  essentially \n\n \n-8- \nnormal. I think this is compatible with his findings. The numbness \nhe  gets  is  when  he  is  using  the  hand  it  is  applying  pressure  to  the \nnerve in the palm as well as the wrist and of course he has had the \nray  amputation  which  is  his  major  issue.  I  explained  what I \nrecommend  is  that  he  would  have  a  metacarpal  transfer  of  the  2\nnd\n \nto  the  3\nrd\n  spot  and  we  will  plate  the  metacarpal  in  place.  I  also \nwould complete an endoscopic carpal tunnel release and I think in \ndoing so this will eliminate the intermittent numbness he is getting \nin his hand. Metacarpal transfer will also provide better functional \nuse  of  the  finger  as  currently  he  drops  objects  into  the  widened \nweb  space  as  well  as  he  has  weak  grip  strength  because  of  the \nscissoring  that  the  ray  amputation  has  caused.  I  explained  that  by \nremoval of the widened web space and alignment of the metacarpal \nthis should improve functional use strength and decrease the pain. \nHe  wants  to  think  about  this  so  I  am  going  to  leave  it  for  him  to \ndecide,  if  he  decides  he  would  like  to  proceed  he  just  needs  to \ncontact our office. \n \n The  respondent  in  this  matter  engaged  the  services  of  a  company  called “genex”  to \nreview  the  surgical  recommendations  of  Dr.  Kelly.  A “physician  advisor  report”  is  found \nRespondents  Exhibit  1,  pages  36-40.  That  report  is  signed  by  Dr.  Aaron  Humphreys,  who  is \nlicensed both in Texas and Alaska. It appears from my review of the report that Dr. Humphreys \nagrees with the surgical recommendations of Dr. Kelly except to modify the recommendation as \nnot  to  perform  the  carpal  tunnel  release  as  part  of  the  surgical  intervention.  Following  is  a \nportion of Dr. Humphrey’s report specifically a section subtitled “analysis and clinical basis for \nconclusion” regarding carpal tunnel release. \nAnalysis and Clinic Basis for Conclusion \n \nThe  ODG  supports  a  carpal  tunnel  release  for  non-severe  carpal \ntunnel  syndrome  when  there  are  corroborating  subjective  and \nobjective   findings,   no   current   pregnancy   or   other   treatable \ndiseases, failure to 3 initial conservative treatments, and a positive \nleft  diagnostic  test  for  median  nerve  entrapment.  The  ODG  does \nnot  address  a  ray  transfer  or  fascial  release.  The  journal  of  the \nAmerican   academy   of   orthopedic   surgeons   states   that   right \nresection  with  or  without  adjacent  ray  transfer  can  be  useful  for \ntreating vascular insufficiency, tumors, infection, trauma, recurrent \n\n \n-9- \nDupuytren  contracture,  and  congenital  tonalities  of  the  hand.  The \nODG   supports   a   fascial   release   for   forearm   compartment \nsyndrome.  The  ODG  supports  surgery  following  reconstructive \nhand  surgery.  In  this  case,  the  claimant  has  an  extensive  surgical \nhistory  including  a  ray  amputation  of  the  third  ray.  There  is  a \npersistent  deformity  and  function  postoperatively  resulting  in  the \ngap opening in the palm and scissoring of the fingers when making \na  fist.  The  examination  is  concerning  for  carpal  tunnel  syndrome; \nhowever,  a  recent  EMG/NCV  (electromyogram/nerve  conduction \nvelocity) was noted to be negative for peripheral nerve entrapment \nor neuropathy. The LT D2 ray transfer to D3 would be appropriate \nto   optimize   function   and   prognosis   in   this   case;   however, \nclarification  is  needed  to  support  the  carpal  tunnel  release  and \nfascial  release.  Based  on  the  available  information,  left  CTR \n(carpal  tunnel  release)  (end0)  &  fascial  release  forearm  CPT-\n29848,   25020   is   not   medically   necessary   and   noncertified; \nhowever,  LT  D2  ray  transfer  to  D3  CPT –  29125,  26555  is \nmedically necessary and certified. \n \n I  know  that  the  report  from  Dr.  Humphreys  was  requested  on  September  29,  2022,  as \nfound  on  the  report’s  first  page  at  Respondent’s  Exhibit  1  page  36;  however,  the  report  date  is \nblank  on  that  same  page.  Page  40  of  Respondent’s  Exhibit  1  indicates  a  peer-to-peer  contact \noccurred on September  30, 2022, but the actual  date of Dr. Humphrey’s  report is otherwise not \nknown. \n On October 3, 2022, Dr. Kelly appears to respond to Dr. Humphreys’ report via letter to \nthe respondent. The body of that letter follows. \nAddressing this letter pertaining to our mutual client Richard Horn. \nHe is scheduled to have left D2 metacarpal transfer to the right 3\nrd\n \nas well as Ray amputation of the right 2\nnd\n metacarpal base. This is \nsecondary to the crushing injury where he had an amputation of his \nright  3\nrd\n  finger.  He  is  also  complaining  of  numbness  in  the  thumb \nand  index  finger.  This  is  related  to  his  carpal  tunnel  syndrome \nwhere he had both positive physical findings. As far as his negative \nconduction studies, I am sure you are aware that 10% of the people \ncan  have  false  negative  EMG/NCV  studies.  His  physical  findings \nare much more accurate and predictable of carpal tunnel syndrome. \nHis carpal tunnel syndrome is definitely related to his injuries as he \n\n \n-10- \nhad  a  crushing  type  injury  which  is  a  common  outcome  for \ndevelopment of carpal tunnel syndrome.  \nPostoperative  swelling  and  the  two  surgical  procedures  he  had \nthere afterwards on his hand all relate to this diagnosis. I hope this \nletter  is  self-explanatory.  If  my  staff  or  myself  can  be  of  any \nfurther assistance please feel free to contact us. \n \n On   February   20,   2023,   Dr.   Kelly   authors   a   letter   to   the   claimant’s   attorney \nacknowledging  a clerical error in his note dated  October 3, 2022, which  indicates left  and right \nhands  and  should  have  only  stated  left  hand.  That  letter  is  found  at  Claimant’s  Exhibit  1,  page \n35. \n After a review of all of the medical evidence and testimony in this matter, I find that the \nsurgical  recommendation  of  Dr.  Kelly  is  reasonable,  necessary  medical  treatment  for  the \nclaimant’s  compensable  left-hand  injury,  to  include  the  carpal  tunnel  release  recommended  by \nDr.  Kelly.  As  Dr.  Kelly  has  examined  the  claimant  on  two  occasions,  I  give  him  more  weight \nthan Dr. Humphreys, who has never examined the claimant. I am also persuaded by Dr. Kelly’s \nOctober  3,  2022,  letter  which  he  clearly  sets  out  the  need  for  carpal  tunnel  release,  which \nincludes both the claimant’s injury itself and the three types of surgical intervention he has had at \nthe hands of Dr. Taylor since that time. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe  his  demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nJanuary  9,  2023,  and  contained  in  a  Pre-hearing  Order  filed  January  10,  2023,  are  hereby \n\n \n-11- \naccepted  as  fact.  The  parties’  additional  stipulation  set  forth  at  the  beginning  of  the  hearing  is \nalso accepted as fact. \n 2.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nadditional  medical  treatment  for  his  compensable  left-hand  injury  in  the  form  of  surgery  as \nrecommended by Dr. Kelly which includes carpal tunnel release. \n ORDER \nThe respondents shall pay the costs associated with the recommended surgical treatment \nof Dr. Kelly, including the carpal tunnel release and costs associated with the surgical aftercare. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no indemnity \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded.   Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H101762 RICHARD HORN, Employee CLAIMANT HARRIS CO. OF FORT SMITH, Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier RESPONDENT OPINION FILED MAY 25, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Cla...","fetched_at":"2026-05-19T23:07:57.664Z","links":{"html":"/opinions/alj-H101762-2023-05-25","pdf":"https://labor.arkansas.gov/wp-content/uploads/HORN_RICHARD_H101762_20230525.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}