{"id":"alj-H101867-2023-05-02","awcc_number":"H101867","decision_date":"2023-05-02","opinion_type":"alj","claimant_name":"Thurn Apple","employer_name":"White River Area Agency On Aging","title":"APPLE VS. WHITE RIVER AREA AGENCY ON AGING AWCC# H101867 MAY 2, 2023","outcome":"granted","outcome_keywords":["granted:5"],"injury_keywords":["back","neck","knee","hip","cervical","shoulder","fracture","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//APPLE_THURN_H101867_20230502.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"APPLE_THURN_H101867_20230502.pdf","text_length":41321,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H101867 \n \nTHURN K. APPLE, EMPLOYEE        CLAIMANT \n \nv. \n \nWHITE RIVER AREA AGENCY  \nON AGING,  EMPLOYER             RESPONDENT \n \nRISK MANAGEMENT RESOURCES, \nCARRIER/TPA             RESPONDENT \n \nOPINION FILED MAY 2, 2023 \n \nHearing  before  Administrative  Law  Judge,  James  D.  Kennedy, on  March 15,  2023,  in \nMountain Home, Baxter County, Arkansas. \n \nClaimant is represented by Laura Beth York, Attorney-at-Law, of Little Rock, Arkansas. \n \nRespondents  are  represented  by   Melissa  Wood,  Attorney-at-Law, of  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on March 15, 2023, to determine the issue of permanent \nand  total  disability  or,  in  the  alternative,  an  Award  of  wage-loss,  plus  attorney fees  in \nregard  to  the claimant’s compensable  injury  of  a  fractured  sacrum.    A  copy  of  the \nPrehearing  Order  dated  December  20,  2022, was  marked  “Commission  Exhibit  1” and \nmade part of the record without objection.  The Order provided the parties stipulated as \nfollows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2.  An employer / employee relationship existed on or about February 8, 2021, \nand at all relevant times, when the claimant sustained a compensable injury \nin the form of a fractured sacrum. \n \n\nAPPLE – H101867 \n \n2 \n \n3.  The claimant earned an average weekly wage of $398.40 with a temporary \ntotal  disability  /  permanent  partial  disability  rate  of  $216.00  /  $200.00, \nrespectively. \n \n4.  The Claimant had been assigned a five percent (5%) impairment rating to \nthe body as a whole, which has been accepted by the respondents. \n  \nThe  claimant’s  and  respondent’s  contentions  are  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire and  made  a  part  of  the  record  without \nobjection.  At the time of the hearing, the parties agreed that the issue was the claimant’s \nentitlement  to  permanent  total  disability  or,  in  the  alternative,  wage-loss  benefits plus \nattorney’s fees.   \n Three  (3)  witnesses  testified,  Thurn  Apple,  the  claimant;  Misty  Glenn,  the  office \ncoordinator; and Don Gregory, the Director of HR for White River Area Agency on Aging.  \nThe  claimant’s  exhibit  one  consisted  of eight  (8)  pages  of  a  Vocational  Rehabilitation \nReport  that  was  admitted  into  the  record  without objection.  The  claimant’s  exhibit two \nconsisted  of  seventy-seven  (77)  pages  of  medical  reports  that  was  admitted  into  the \nrecord without objection.  Respondents exhibit  one  consisted of fifty-four (54) pages of \nmedical records that was admitted into the record without objection. Respondents exhibit \ntwo consisted of seven (7) pages of a Vocational Rehabilitation Preliminary Report that \nwas also admitted into the record without objection.  In addition, both parties requested \nthat due to the fact the matter had been tried before, the previous transcript and briefs be \nretained in the Commission’s file as part of the record in regard to this matter.  From a \nreview  of  the  record  as  a  whole,  to  include medical  reports and other matters properly \nbefore  the  Commission,  and  having  had  an  opportunity  to  observe the  testimony  and \ndemeanor of the witnesses, the following findings of fact and conclusions of law are made \nin accordance with Ark. Code Ann. § 11-9-704. \n\nAPPLE – H101867 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  An employer / employee relationship existed on or about February 8, 2021, and \nat all relevant times, when the claimant sustained a compensable injury in the \nform of a fractured sacrum. \n \n3.  The claimant earned an average weekly wage of $398.40 with a temporary total \ndisability / permanent partial disability rates of $216.00 / $200.00, respectively. \n \n4.  That the claimant has been assigned a five percent (5%) rating to the body as \na whole, which has been accepted by the respondents. \n \n5.  That the claimant has failed to satisfy the required burden of proof that she is \nentitled to permanent and total disability but, in the alternative, has satisfied the \nrequired  burden  of  proof,  by  a  preponderance  of  the  evidence,  that  she  is \nentitled to an Award of wage-loss in the amount of five percent (5%). \n \n6.  The  claimant  is  entitled  to  attorney’s  fees  pursuant  to  Ark.  Code  Ann. \n§11-9-715.    This  Award  shall  bear  interest  at  the  legal  rate  pursuant  to  Ark. \nCode Ann. § 11-9-809. \n \n7.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \n  \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The claimant,  Thurn K. Apple, was the first witness to testify.  She was born on \nOctober 6, 1954, and was sixty-eight (68) years old at the time of the hearing.  In regard \nto education, she made it halfway through the eleventh grade and then obtained her GED.  \nAfter that, her education consisted of on-the-job training, where she initially worked in an \nassembly-line shirt factory in Mountain Home, Arkansas.   After the shirt factory, she and \nher  husband  owned  and  operated  a  grocery  store  which  they  eventually  sold  and  she \nthen  returned  to  the  shirt  factory  where  she worked  a  total of about  twenty  (20)  years.  \nShe also worked at an apartment complex, a convenience store, and was the manager \nof  the  kitchen  in  a  retirement  home.    In  the  apartment  complex  job,  she  worked  in \n\nAPPLE – H101867 \n \n4 \n \nhousekeeping and cleaned the apartments allowing people to move back in.   She also \nworked  part-time  in  the  evenings  during  this  time  in  a  restaurant  cooking  and  waiting \ntables.  During this period, she also worked a third job at a convenience store as a cashier. \n(Tr. 6-10)  When she went to work at the retirement home, she was the manager in the \nkitchen and slipped on some spilled water, injured her back, and ended up having surgery.  \nShe then moved back to Arkansas. (Tr. 11) \n Upon  returning  to  Arkansas,  she  initially  worked  at  the  Sonic  in  Melbourne, \nArkansas, as the breakfast manager, and later at a Pizza Inn where she again cooked \nand waited tables.  She was then hired by the respondent, White River, in or around 2013, \nwhere she worked as a caregiver and was injured, fracturing her sacrum. (Tr. 12-14)   She \nadmitted  giving a  recorded  statement  to an adjuster  about her prior  medical  problems.  \nShe admitted injuring her neck at the shirt factory, but stated she did not receive surgery \nand returned to work with no restrictions.  She also admitted falling in 2005, while working \nat  a  retirement  center  where  she  injured  her  back  which  required  surgery.    She  also \nadmitted  she  was  in  the  early  stages  of  kidney  failure,  but it  did  not  prevent  her  from \nworking.  She went on to state, “I don’t know if the kidney failure has gotten worse, but \nsince I hurt my back, I have trouble controlling my bowels and kidneys.”  She also agreed \nshe told the adjuster she had been diagnosed with fibromyalgia in the 80’s, and also told \nher about her arthritis and diabetes, but that none of these conditions prevented her from \nworking for the respondent. (Tr. 15-16) \n In regard to the difference in her pain between 2005 after her first back injury and \nsurgery and the 2021 injury, the following testimony occurred: \n\nAPPLE – H101867 \n \n5 \n \nA: Well, with the first injury I didn’t have any trouble with my legs or anything, it was \njust my back.  After surgery, I’ve never had any problems with my back or anything \nat all as far as from the accident in 2001 (sic) since I’ve hurt it. \n \nQ: 2001 or 2021? \n \nA: 21. I’m sorry. \n \nQ: That’s okay \n \nA: In 2021 when I got hurt, this accident has caused me to be numb from my sacrum \narea all the way down my left leg.  And the reason I’m not saying anything about \nmy  right  leg  was  because  it  was  already  numb  from  the  knee  down  from  a  car \nwreck in 73. \n \nQ: Okay. \n \nA: And to this day I’m still having a lot of trouble with being able to balance myself if I \nhave to sit too long or stand too long, and I’ll have muscle cramps in the left side \nof my leg, my left leg, and still have the numbness around my sacrum.   And it’s \nembarrassing, but if I have to go to the bathroom, I’d better go or I’m liable to mess \nmyself up. (Tr. 17) \n \nThe  claimant  went  on  to  state  that  a  car  accident  affected  her  right  leg  and the \naccident in 2021 did not affect her right leg, but only her left leg.  The injury in the 70’s did \nnot prevent her from working, or create balance, bladder, or bowel problems like the injury \nin 2021. (Tr. 18) \n   The claimant initially saw Dr. Spann, her primary care physician, who ordered an \nMRI and referred her to Dr. Seale who did not recommend surgery.  She stated she was \nnot eligible for  epidural  steroid  injections  because  she was allergic to  them,  which  she \nlearned back in 2005.  She was referred to Dr. Varela for an independent medical exam \nand he did not examine her per se, but talked to her and told her nothing was wrong with \nher and released her to return to work. (Tr. 19-21)  Initially, she was not offered light-duty, \nbut it was later offered to her and she answered phones and cleaned up and straightened \nthe offices for three (3) hours a day.  She thought this lasted about three (3) weeks but \n\nAPPLE – H101867 \n \n6 \n \nwas not sure.  She felt terrible at the end of the day and after about two  (2) or three (3) \nweeks  she  was  sent  home  and  was  told  she  was  not  needed  at  that  time.    Then \napproximately six (6) or so weeks later, she was asked to return to light-duty where she \nagain worked three (3) hours a day and again felt the same after work as before.  This \nagain lasted about two (2) or three (3) weeks and she was then told they did not have \nanything for her and was never called back.  She thought she then received a phone call \ntelling her she had been let go and there was no work available. (Tr. 22-24) \n There  was  a  change  of  physician  to  Dr.  Knox  and  he  assessed  her  with  a five \npercent (5%) impairment rating which was accepted by the respondents.  She has since \nreturned  to  Dr.  Spann,  her  primary  care  physician,  and  has  been  placed  on  work \nrestrictions of light-duty with no lifting, bending, or twisting.  She agreed that Dr. Spann \nhad  provided  that, “She  is  unable  to  work  with  gainful  employment  due  to  pain,  leg \nweakness, and a tendency to fall”.  She went on to state she has not worked since her \ntermination. (Tr. 25-26) \n   She  also  agreed  the  respondents  hired  someone  named  Keondra  Hampton  to \nperform a vocational rehabilitation preliminary report but that she never met her and never \nhad any discussions with her.  She did admit that Ms. Hampton identified jobs for her, \nand one was with Chartwell and one with Sonic.  The claimant was allowed to answer if \njobs  were  available  over  the  objection  of  the  respondent  and  the  claimant  stated she \ncontacted them, but none were available.  (Tr. 27-31) \n   The claimant admitted she could pick up a gallon of milk but that it does bother her \nunless she’s just moving it to set it down.  She can no longer work in her flower garden.  \nShe  also  admitted  she  could  drive  and  could  generally  hold  out  for  about  thirty  (30) \n\nAPPLE – H101867 \n \n7 \n \nminutes or a bit more.  However, the trip to the courthouse for the hearing was fifty (50) \nsomething  miles  and her  friend  drove  her.   In  regard  to  her  housework,  her  daughters \nnow  have  to  help  her, and she  is  not  supposed  to  mop  or  vacuum.  (Tr.  32-33)  On  a \ntypical day, she gets up and fries an egg which is hard to do because before getting it \nfried she is hurting, and then goes and sits in her recliner for fifteen (15)  to twenty (20) \nminutes and then goes to the bathroom.  She watches TV and can make it to the mailbox \nwhich is about fifty (50) feet or so away.  In regard to grocery shopping, she admitted she \nsometimes does it and part of the time her daughter does it.  After shopping, she takes \nthe things that need to be refrigerated into the house and sometimes has to wait an hour \nor two before bringing the remainder into the house.  She again stated her left leg was \nnumb, but she has not yet fallen because there was always something to hang on to or \nlean against like a hallway. (Tr. 34-36) \n   Under  cross-examination,  the  claimant  admitted  that  while  working  for  the  shirt \nfactory for twenty (20) years, she held many positions all involving sewing.  In regard to \nworking in the grocery store, the claimant admitted she ran the store while her husband \nworked in the garage and she checked people out, made sandwiches, stocked, ordered \nproducts and handled the paperwork.  She also admitted her previous surgery back in or \naround 2005 involved the placement of bolts, screws, and plates, and they were still in \nplace. (Tr. 37-38)  She settled that claim for $30,000.00.   \nShe had gone to work part-time for the respondent about five (5) years ago due to \nthe fact she did not want to work as much, and had been told she, “might be starting with \nthe first kidney failure,” and consequently, she decided to cut back because she started \ntaking her  social  security.    She  was  working about  thirty  (30)  hours  a  week.   She  also \n\nAPPLE – H101867 \n \n8 \n \nadmitted  applying  for  social  security  disability  at  the  age  of  sixty-four  (64)  due  to  her \nfibromyalgia, but  it  was  not  approved.    She  also  agreed  Dr.  Spann  had  previously \ndiagnosed her with left hip pain and osteoarthritis, along with fibromyalgia.  She also did \nnot  dispute  a  diagnosis  of  chronic  pain  syndrome,  cervical  degenerative  disc  disease, \nproblems with the right shoulder, and fatigue.  She also remembered a complaint of left \nknee pain.  She went on to provide that with fibromyalgia, you just hurt everywhere.  She \nalso admitted that if Dr. Spann stated that she had left hip pain and pain in both knees in \nNovember of 2020, she agreed.  She would not agree with the report providing for lower \nback pain, however.  In regard to Dr. Luke Knox, who she saw once, she agreed that the \nonly thing he did was to provide a disability rating and he did not assign any restrictions. \n(Tr. 39-42)  In regard to Dr. Varela, she stated, “He didn’t tell me anything other that there \nwasn’t anything wrong with me, that I wouldn’t work.” (Tr. 43)  She also agreed that with \nthe  exception  of  Sonic  and  KFC,  she  had  contacted  the  employers  the  month  of  the \nhearing which was mentioned under direct-examination. (Tr. 44) \n At the conclusion of the claimant’s testimony, Misty Glenn, the office coordinator for \nWhite  River  Area  Agency  on  Aging,  was  called  by  the  respondents.    She  testified  the \nrespondents offered the claimant light-duty and she was in the office when the claimant \nwas straightening and cleaning up.  At that time, the claimant was under the restrictions \nof Dr. Spann and the work offered was within those restrictions.  “After she came to the \noffice and started working, she couldn’t sweep, she couldn’t push the vacuum, and she \ncouldn’t take out the trash because she wasn’t supposed to lift she said, and she wasn’t \nsupposed to bend.”  Ms. Glenn stated the claimant didn’t do any of these and she, “pretty \nmuch dusted and answered the phone and –.  I don’t even know that she answered the \n\nAPPLE – H101867 \n \n9 \n \nphone, because we are fully staffed in the office, but that was something she could do if \nthat came up.”  Ms. Glenn further stated that eventually the claimant was moved to a desk \nout front, but there was a bit of a conflict because she heard the claimant and another \naide talking and the claimant mentioned she was basically getting paid to do nothing. The \nclaimant was then moved to the back office.  She also testified the claimant was moving \n“fine.” (Tr. 47-49)  \nUnder  cross-examination,  Ms.  Glenn  admitted  she  had  testified  in  the  previous \nhearing  that  there  was  no  light-duty  available  at  White  River,  and had  further  stated, \n“There  was,  to my  knowledge,  since  I’ve  worked  there,  there  were  no  light  duty  jobs.  \nThere was a minimum qualifications, minimum, you know, lifting restrictions, that there \nwas  none  available.”    She  went  on  to state  the  job  was  created  specifically  for  the \nclaimant.    The  claimant  accepted  light-duty  and  came  to  work,  and  she  lasted  a  few \nweeks.    Ms.  Glenn  stated  it  was  her  understanding  that  the  claimant  was  released \nbecause there were no restrictions on what she could do and she could therefore go back \ninto the homes.  “I don’t think that she was terminated at that time, we just didn’t have \nanything to offer her at that time since she could not take the clients that was available \ndue to her being unable to work, per her.”  Ms. Glenn admitted the claimant came and \nperformed light-duty twice.  She was not aware of any long-term, light-duty jobs available \nand agreed that the claimant worked three (3) hours a day when she worked. (Tr. 50-52) \nDonald  Gregory,  the  HR  Director,  was  also  called  by  the  respondents and had \nbeen in that position for almost a year.  He had one assistant that worked with him, so \nthey were  the  “customer  service portion  of  the  company  to  an extent.”   He testified he \nwas familiar with the claimant and was the one that terminated the claimant by sending \n\nAPPLE – H101867 \n \n10 \n \nher a letter.  The reason for her termination was, “the second opinion that we got from the \nphysician indicated that the issues were not related to the workers’ compensation injury, \nand that the restrictions did not meet the job requirements, so the release was based on \nthat.”  He stated he was referring to the opinion of Dr. Varela and that the claimant did \nnot have any restrictions due to her work injury. (Tr. 53-54) \nMr.  Gregory  stated  that  there  was  a  huge  box  of  heavy-duty  binder  clips  that \nneeded  to  be  separated  and  the  claimant  was  assigned  that  job.    The  following \nquestioning then occurred: \nQ: So the restrictions that she had unrelated to the work injury, could she have done \nher job as an aide with those restrictions? \n \nA: With the restrictions that Doctor Varela put in place? \n \nQ:       Correct. \n \nA:   No. (Tr. 55) \n \nUnder  cross-examination,  Mr.  Gregory  testified  he  was  not  familiar  with  the \nclaimant prior to her date of injury, stating  her injuries occurred before he started, if his \nmemory served him correctly.  He could not testify to her restrictions prior to the injury, \nand that all he knew was about her restrictions after her injury. (Tr. 56) \nMr. Gregory was also asked about Ms. Glenn and he admitted he was familiar with \nher.  He stated light-duty was offered to the claimant and he had never had an opportunity \nto work with the claimant due to his office being in Batesville.  He was not sure if there \nwas any long-term disability available at White River since he had not had that situation.  \nHe was also questioned about the vocational assessment and stated he was not familiar \nwith it.  He was then handed the report and responded that there were no light-duty jobs \nidentified at White River in the report. (Tr. 57-60)    \n\nAPPLE – H101867 \n \n11 \n \nThe  entirety  of  the  medical  and  documentary  evidence  submitted  have  been \nreviewed.  The claimant’s medical reports consisting of seventy-seven (77) pages were \nadmitted without objection.  Claimant presented to the Stone County Medical Center ER \non February 8, 2021, after  she reported she fell on her bottom and then onto her back \nhitting  both  the  back  of  her  head  and  both  elbows  and  neck  and  reported  pain  in  her \nelbows,  sacral  area,  head,  neck,  and  elbows  with  a  small  bruise  reported  on  her  left \nforearm and reported, “soreness all over.”   A CT of the pelvis provided the bony structures \nwere intact with bilateral arthritic change and with a bilateral transverse fracture through \nthe 4\nth\n sacral segment, which was of indiscriminate age, but could be acute.  A CT of the \nhead  showed  no  hemorrhage,  mass  effect,  or  midline  shift,  with  no  acute  skeletal \nabnormality. (Cl. Ex. 1, P. 1-16)  A medical report by Dr. Eric Spann dated February 22, \n2021, provided for a finding of a closed fracture of the coccyx with routine healing, along \nwith other chronic pain. (Cl. Ex. 1, P. 17-20)  The claimant returned to Dr. Spann on March \n1, 2021, and the report provided for paraspinal muscle spasm, with a closed fracture of \nthe coccyx, with routine healing. (Cl. Ex. 1, P. 21-24)  The claimant returned to Dr. Spann \non March 5, 2021, and March 15, 2021. (Cl. Ex. 1, P. 25-32) \nThe claimant then presented to the Stone County Medical Center for an MRI of the \npelvis on March 26, 2021.  The MRI report provided for a bone marrow signal abnormality \nin the sacrum at the S3-4 level to the right of the midline which might represent a subtle \nfracture,  although  not  classic  for an  insufficiency  fracture.    Sacroiliac  joints  appeared \nintact with minimal fluid in the left sacroiliac joint.  No fracture or dislocation was seen at \nthe hips and the coccygeal segments appeared intact with no definite impingement of the \nsacral nerve roots identified. (Cl. Ex. 1, P. 33) \n\nAPPLE – H101867 \n \n12 \n \nApproximately  five  (5)  months  later,  the  claimant  presented  to  Payton  Ransom, \nP.A.,  on  August  11,  2021,  and  the  notes  provided  the  claimant  presented  to  discuss \nconcerns about her sacrum and left leg.  The report provided the claimant had suffered \npain off and on throughout the years with a history of a sacral fracture when she was 18, \ndue to a motor vehicle accident, but that the pain had been greatly exacerbated since her \nfall on February of 2021. (Cl. Ex. 1, P. 34-38)  The claimant presented to OrthoArkansas \non September 20, 2021, for an MRI of the lumbar spine.  The report provided there was \na possible small left foraminal to extraforaminal protrusion type disc herniation, although \nthere was  no  definite  mass  on  the  adjacent  exiting  left  L5  nerve  root.    Left  foraminal \nstenosis was moderate and right foraminal stenosis was mild.  There was mild foraminal \nstenosis on the right at L2-L3 and L3-L4, bilaterally at L4-L5, and on the right at L5-S1. \n(Cl. Ex. 1, P. 39)  \nThe  claimant  then  returned  to  Payton  Ransome,  P.A.,  on  September  21,  2021, \nwho  opined  that  the claimant’s  MRI  did  reveal  a  disc  protrusion  that was  an  objective \nfinding  of  injury  that  matched the  patient’s  subjective  complaints  and  symptoms.    The \npatient’s symptoms began on and after the work injury.  Therefore, it was within a degree \nof medical certainty that at least fifty-one percent (51%) of the patient’s current symptoms \nare  directly  related  to her  work  injury.  The  patient  does  have  an  extraforaminal  disc \nprotrusion on  the  left at  L5-S1  that was  creating her  left  leg  radiculopathy.    The  report \nalso provided the claimant couldn’t have epidural steroid injections. (Cl. Ex. 1, P. 40-44) \nThe claimant returned to Dr. Spann on November 15, 2021, who stated she could \nnot return to work until April 22, 2022.  The claimant returned to Dr. Spann on December \n13, 2021, to discuss disability paperwork.  The claimant then again returned to Dr. Spann \n\nAPPLE – H101867 \n \n13 \n \nthree (3) months later, on March 21, 2022, for a follow-up where she stated her legs got \ntingly  and  the  neurosurgeon  had  suggested  surgery.    She  then  returned  to Dr.  Spann \nagain on April 7, 2022, and he issued another off-work note which provided that she could \nwork two (2) to three (3)  hours per day. (Cl. Ex. 1, P. 45-54.) \nThe claimant was seen by Dr. Charles Varela on June 27, 2022, for an IME.  The \nreport provided that no patient/physician relationship was established.  The claimant was \nthen referred by Dr. Spann to Dr. Seale, a spinal surgeon at OrthoArkansas in Little Rock.  \nAn MRI scan was performed and the patient was noted to have evidence of possible small \nleft  disc  protrusion  at  L5-S1  without  compression  of  the  nerve  root.    Mild  foraminal \nstenosis  was  noted  in  the  remainder  of  the  spine.    There  was  no  mention  of  a  coccyx \nfracture on the MRI scan or on the evaluation by Dr. Seale.  He did however recommend \na possible foraminal microdiscectomy on the left L5-S1 in the future.  Under impression, \nthe report provided for a post probable S3 sacral fracture, acute, work-related, resolved \nand chronic mechanical low back pain with symptoms not justified by objective findings, \nnot  related  to  work  injury.    The  report  went  on  to  provide  that  the  claimant  should  be \nplaced on work restrictions due to her chronic low back pain, age, and general physical \ncondition,  and  that  she  could  return  to  work  with  a  twenty-five  (25)  pound  weight \nrestriction. (Cl. Ex. 1, P. 55-57) \nDisability papers were filled out by Dr. Spann’s office on July 19, 2022. (Cl. Ex. 1, \nP. 58-60)  The claimant then presented to Dr. Luke Knox on September 15, 2022.  His \nreport provided that the claimant had been seen in the neurosurgery clinic on the above \ndate and referred to both the MRI and CT scans.  Under plan, the report provided there \nwere no   further   medical   treatments   and/or   additional   diagnostic   tests   currently \n\nAPPLE – H101867 \n \n14 \n \nrecommended and/or necessary that was associated with the sacral fracture and/or lower \nback injury and complaints.  Additionally, Dr. Knox opined that he agreed with Dr. Varela \nthat the claimant had reached maximum medical improvement and he believed no other \ntreatment  options  were  available.    The  claimant  qualified  for  a  five  percent  (5%) \npermanent partial disability to the body as a whole. (Cl. Ex. 1, P. 61-73)  The claimant \nthen returned to Dr. Spann who issued another off-work note that provided the claimant \nwas unable to work a job with gainful employment due to her pain, leg weakness, and \ntendency to fall and opined that the claimant could only work two (2) to three (3) hours a \nday.  (Cl. Ex. 1, P.74) \nThe  respondents  also  submitted  medical  records  of  fifty-four  (54)  pages.  The \nrespondents  submitted  Walmart  Pharmacy  records  from  December  5,  2007,  through \nJanuary 23, 2022. The records provided the claimant was on various medications during \nthat time period which included various medications for pain to take as needed well before \nthe   work-related   incident   of   February   8,   2021.      The   claimant   was   prescribed \nHydrocodone, Ultram, and Darvocet combined with prescription Tylenol as far back as \n2008, along with various additional pain medications and muscle relaxers over the years \nprior to the work-related incident. (Resp. Ex. 1, P 1-22)  \n The respondents also provided claimant’s patient summaries from Dr. Spann for \nthe time period of July 26, 2016, through July 7, 2020.  The reports provided she suffered \nfrom a variety of health issues as far back as July 26, 2016, which included chronic pain, \ndegenerative disc disease, and pain in the right and left shoulder.  Osteoarthritis of the \nhip  and  arthritis  and  degenerative  arthritis  of  the  knee  were  also  diagnosed.    Besides \npain,  the  claimant  was  also  diagnosed  with  hypertension,  a  right  rotator  cuff tear,  and \n\nAPPLE – H101867 \n \n15 \n \nchronic severe right shoulder dysfunction. (Resp. Ex. 1, P. 23-28)  Dr. Spann’s chart notes \nfrom  June 9, 2020, through July 20, 2020, provided the claimant suffered from chronic \npain syndrome, hip osteoarthritis, palindromic rheumatisms, as well as hypertension, and \ncontrolled type 2 diabetes with diabetic polyneuropathy. (Resp. Ex. 1, P. 29-34) \n A chart note from Fletcher Chiropractic dated July 7, 2020, provided the claimant \npresented with low back pain on the left and that the claimant should respond well to care. \n(Resp. Ex. 1, P. 35) \n Additional chart notes from Dr. Spann dated September 21, 2020, and November \n4, 2020, provided the claimant was suffering from piriformis syndrome of the left side with \nleft  hip  pain,  plus  bilateral  knee  pain  on  the  November  visit  along  with  various  chronic \ndiseases. (Resp. Ex. 1, P. 36-42) \n The  respondents  also  submitted  the  IME  report  from  Dr.  Varela  and  additional \npages in regard to the Disability Physicians Statement and Claimant’s Accommodation \nrequest by Dr. Spann. (Resp. Ex. 1, P. 46-52)  Dr. Spann opined that the claimant was \nunable to twist or turn, shouldn’t lift over twenty (20) pounds, and should work less than \nfour  (4)  hours  a  day.    The  respondents  also  submitted  the  rating  report  from  Dr.  Luke \nKnox. (Resp. Ex. 1, P. 53)  The respondents also submitted six (6) pages of the Vocational \nRehabilitation  Preliminary  Report  dated  November  11,  2022,  which  provided  that  the \nreports from Washington Regional Neuroscience and Dr. Knox, along with reports from \nthe Ozark Orthopedic and Hand Surgery Center, the White River Orthopedic and Hand \nSurgery Center, the White River Health System Stone County Medical Center, and the \ndeposition of the claimant dated June 9, 2021, all had been reviewed and there were a \n\nAPPLE – H101867 \n \n16 \n \nvariety  of  jobs  available  that  the  claimant  could  perform  which  included  a  cashier, \nchecker, waitress, and kitchen helper among others.  (Resp. Ex. 2, P. 1-6)    \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn the present matter, the parties stipulated the claimant sustained a compensable \ninjury in the form of a fractured sacrum, on February 8, 2021.  The claimant is therefore \nnot required to establish “objective medical findings” in order to prove that she is entitled \nto additional benefits. Chamber Door Indus., Inc. v Graham, 59 Ark. App. 224, 956 S.W.2d \n196 (1997). \nIn determining whether the claimant has sustained her required burden of proof, \nthe  Commission  shall  weigh  the  evidence  impartially,  without  giving  the  benefit  of  the \ndoubt to either party.  Ark. Code Ann. § 11-9-704;  Wade v. Mr. Cavananugh’s, 298 Ark. \n364, 768 S.W. 2d 521 (1989).  Further, the Commission has the duty to translate evidence \non all issues before it into findings of fact. Weldon v. Pierce Brothers Construction Co., \n54 Ark. App. 344, 925 S.W.2d 179 (1996). \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe   Arkansas   Workers’   Compensation   Act   and   must   sustain   that   burden,   by   a \npreponderance of the evidence.  Dalton v. Allen Engineering Co., 66 Ark. App. 201, 635 \nS.W. 2d 823 (1982).  Preponderance of the evidence means the evidence having greater \nweight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark App. 263, \n101 S.W.3d 252 (2003).   \nIt is noted that a claimant’s testimony is never considered uncontroverted. Nix v. \nWilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a \nwitness’s credibility and how much weight to accord the person’s testimony are solely up \n\nAPPLE – H101867 \n \n17 \n \nto  the  Commission. White  v.  Gregg  Agriculture  Ent.  72  Ark.  App.  309,  37  S.W.3d  549 \n(2001).  Additionally, the employer takes an employee as he finds him and employment \ncircumstances that aggravate pre-existing conditions are compensable.  Heritage Baptist \nTemple v. Robinson, 82 Ark. App. 460. 120 S.W.3d 150 (2003).   \nWhere  there  are  contradictions  in  the  evidence,  it  is  within  the  Commission’s \nprovince to reconcile conflicting evidence and to determine the true facts. Cedar Chem. \nCo. v. Knight, 99 Ark. App. 162, 258 S.W.3d 394 (2007).  The Commission has authority \nto accept or reject medical opinion and to determine its medical soundness and probative \nforce. Oak  Grove  Lumber  Co.  v.  Highfill,  62  Ark.  App.  42,  968  S.W.2d  637  (1998).  \nHowever,  the  Commission  may  not  arbitrarily  disregard  the  testimony  of  any  witness. \nPatchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004). \nIt is noted that the claimant was allowed to testify as to contacting employers in the \narea  in  regard  to  the  list  of  jobs  available  as  listed  in  the  Vocational  Rehabilitation \nPreliminary   Report,   over   a   standing   objection   as   to   admissibility   made   by   the \nrespondents.  The law is clear that the Commission has broad discretion with reference \nto the admission of evidence, and its decision will not be reversed absent a showing of \nabuse  of  discretion.   Brown  v.  Alabama  Elec.  Co.,  60  Ark.  App.  138,  959  S.W.2d  753 \n(1998).    The  Commission  is  given  a  great  deal  of  latitude  in  evidentiary  matters,  as \nspecifically  spelled  out  in  Ark.  Code  Ann.  §11-9-705.    The  Commission  is  directed  to \n“conduct the hearing in a manner that will best ascertain the rights of the parties.”  Clark \nv. Peabody Testing Service, 265 Ark.489, 579 S.W. 2d. 360 (1979).  Hearsay is an out of \ncourt statement offered to the truth of the matter asserted.  In determining whether the \nstatement is hearsay, the first question that needs to be reviewed is who is the proponent \n\nAPPLE – H101867 \n \n18 \n \nof the statement and why are they offering it.  Are they offering it to prove that the contents \nare true or are they offering it for some other reason.   Here, the claimant’s statements \nwere not sufficient to necessarily show that no jobs were available in the area but were \nsufficient to show that she had at least looked for available work. \nIn  the  present  matter  there  are  no  future  treatment  or  procedures  proposed  in \nregard  to  the claimant’s  injury.  Dr.  Knox and  Dr.  Varela both  opined  the  claimant  had \nreached maximum medical improvement and Dr. Knox additionally opined on September \n15,  2022,  that  the  claimant  had  reached  maximum  medical  improvement  with  a  five \npercent  (5%)  partial  impairment  rating  to  the  body  as  a  whole  and  the  respondents \naccepted  this  rating.   Dr.  Varela  provided that  the  claimant  could  return  to work  with a \ntwenty-five (25) pound weight restriction and Dr. Spann provided for a twenty ( 20) pound \nweight  restriction.  The  Vocational  Rehabilitation  Report  provided that  appropriate  jobs \nwere available in the area.   \n In  regard  to  the  issue  of  permanent  and  total  disability  or,  in  the  alternative, \nwage-loss, permanent and total disability means inability, because of compensable injury \nor occupational disease, to earn any meaningful wages in the same or other employment.  \nArk. Code Ann. §11-9-519(e)(1).  The burden of proof shall be on the employee to prove \ninability to earn any meaningful wage in the same or other employment.  Ark. Code Ann. \n§11-9-519(e)(2).  Permanent benefits may be awarded only if the compensable injury was \nthe  major  cause  of  the  disability  or  impairment.   Ark.  Code  Ann.§ 11-9-102(4)(F)(ii)(a).  \nHere the only evidence produced at the hearing was that the claimant was unable to earn \nany  meaningful  wages  as  a  result  of  the  compensable  injury  was  the  testimony  of  the \nclaimant.  Dr. Spann opined that although the claimant could not twist or bend, she could \n\nAPPLE – H101867 \n \n19 \n \nin fact return to lifting up to twenty (20) pounds while Dr. Varela opined that the claimant \ncould return to work and was restricted to lifting up to twenty-five (25) pounds.  It is also \nnoted that no medical provider specifically indicated that the claimant was unable to work.  \nDr. Spann did limit her to two (2), three (3), or four (4) hours  of work depending on the \ndate  of  the  report,  Dr.  Seale  opined  that  the  symptoms  were  not  justified  by  objective \nfindings, Dr. Knox assigned no restrictions, and Dr. Varela felt that basically nothing was \nwrong with her per the claimant’s own testimony.  Based upon the available evidence, the \nclaimant has failed to prove, by a preponderance of the evidence, that she is unable to \nearn meaningful wages as the result of the compensable injury, and consequently has \nfailed  to  satisfy  the  required  burden  of  proof  for  permanent  and  total  disability.  See, \nGreenfield v. Conagra Foods, 210 Ark. App. 292 (2010) \n In regard to the issue of wage-loss, it is the extent to which a compensable injury \nhas  affected  the  claimant’s  ability  to  earn  a  livelihood.   Rutherford  v.  Mid-Delta  Cmty. \nServs., Inc. 102 Ark. App. 317, 285 S.W.3d 248 (2008).  The Commission is charged with \nassessing  wage-loss on  a  case-by-case  basis.    Factors  to  be  considered  in  accessing \nwage-loss include the employee’s age, education, post-injury income, work experience, \nmedical  evidence,  and  other  matters  which  may  reasonably be  expected  to  affect  the \nworkers’ future earning power such as motivation, post injury income, bona fide job offers, \ncredibility or voluntary termination.  Glass v. Edens, 232 Ark. 786, 346 S.W.2d 685 (1961);  \nOller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W. 276 (1982); Hope School \nDistrict v. Charles Watson, 2011 Ark App 219, 382 S.W. 3d 782 (2011).  The  Award of \nwage-loss  is  not  a  mathematical  formula  but  a  judicial  determination  based  on  the \nCommission’s knowledge of industrial demands, limitations, and requirements. Henson \n\nAPPLE – H101867 \n \n20 \n \nv. General Electric, 99 Ark. App. 129, 257 S.W. 3d 908 (2008).  Pursuant to Ark. Code \nAnn. § 11-9-522(b)(1), when a claimant has an impairment rating to the body as a whole, \nlike in the current matter, the Commission has the authority to increase the disability rating \nbased  upon  wage-loss  factors.    The  wage-loss  factor  is  the  extent  to  which  a \ncompensable  injury  has  affected  the  claimant’s  ability  to  earn  a  livelihood.   Emerson \nElectric v. Gaston, 75 Ark. App. 232, 58 S.W. 3d 848 (2001).  Objective and measurable \nphysical findings which are necessary to support a determination of “physical impairment” \nor  anatomical  disability  are  not  necessary  to  support  a  determination  of  wage-loss.  \nArkansas Methodist v. Adams, 43 Ark. App. 1, 858 S.W. 2d (1993)     \n Here,  it  is  clear  the  claimant  suffered  from  a  variety  of  pre-existing  matters  and \nchronic  health  issues,  such  as  fibromyalgia,  osteoarthritis,  chronic  pain,  previous  back \nsurgeries,  kidney  issues,  hypertension,  and  diabetes.    Evidence  provided  the  claimant \nwas born October 6, 1954, and was sixty-eight (68) years old at the time of the hearing.  \nShe previously had worked at a shirt factory as a line worker sewing, ran a grocery store \nwhere she ran the cash register, ordered product, stocked, and additionally had worked \nas a cook, waitress, and as a care-taker for the elderly or impaired.  Some of these jobs \nlisted in the area could be performed by a person who is limited to lifting twenty  (20) to \ntwenty-five (25) pounds.  To be entitled to any wage-loss disability benefit in excess of \npermanent physical impairment, a claimant must first prove, by a preponderance of the \nevidence,  that  he  or  she  sustained  permanent,  physical  impairment  as  a  result  of  a \ncompensable  injury.   Wal-Mart  Stores,  Inc.  v.  Connell,  340  Ark.  475,  10  S.W.3d  882 \n(2000)   In the present matter, Payton Ransome P.A. on September 21, 2021, opined that \nthe claimant’s MRI did reveal a disc protrusion that is an objective finding of injury that \n\nAPPLE – H101867 \n \n21 \n \nmatched the patient’s subjective complaints and symptoms.  The claimant’s symptoms \nbegan on and after the work duty.  Therefore, it was within a degree of medical certainty \nthat at least fifty-one percent (51%) of the claimant’s current symptoms are directly related \nto her work injury.  Based upon a review of all the above, it is determined that the claimant \nis entitled to a five percent (5%) wage-loss determination. \n After reviewing and weighing the evidence impartially, without giving the benefit of \nthe doubt to either party, the claimant has failed to satisfy the required burden of proof \nthat she is entitled to permanent total disability, but, in the alternative, has satisfied the \nrequired burden of proof that she is entitled to wage-loss in the amount of  five percent \n(5%). \n The claimant and her attorney are entitled to the appropriate legal fees as spelled \nout in Ark. Code Ann. § 11-9-715. \n This  Award  shall  bear  interest  at  the  legal  rate  pursuant  to  Ark.  Code  Ann. \n§11-9-809.    If  not  already  paid,  the  respondents  are  ordered  to  pay  the  cost  of  the \ntranscript forthwith. \nIT IS SO ORDERED. \n \n \n      _____________________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H101867 THURN K. APPLE, EMPLOYEE CLAIMANT v. WHITE RIVER AREA AGENCY ON AGING, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED MAY 2, 2023 Hearing before Administrative Law Judge, James D. Kennedy, on March 15, 2023, in M...","fetched_at":"2026-05-19T23:07:05.385Z","links":{"html":"/opinions/alj-H101867-2023-05-02","pdf":"https://labor.arkansas.gov/wp-content/uploads//APPLE_THURN_H101867_20230502.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}