{"id":"alj-H102851-2023-05-10","awcc_number":"H102851","decision_date":"2023-05-10","opinion_type":"alj","claimant_name":"Michael Mitchell","employer_name":"Jet Asphalt & Rock Co., Inc","title":"MITCHELL VS. JET ASPHALT & ROCK CO., INC. AWCC# H102851 MAY 10, 2023","outcome":"denied","outcome_keywords":["affirmed:1","dismissed:1","granted:1","denied:3"],"injury_keywords":["thoracic","back","neck","hernia","hip","fracture","cervical","herniated"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/MITCHELL_MICHAEL_H102851_20230510.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MITCHELL_MICHAEL_H102851_20230510.pdf","text_length":32690,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H102851 \n \nMICHAEL W. MITCHELL,   \nEMPLOYEE                                             CLAIMANT \n                                           \nJET ASPHALT & ROCK CO., INC.,   \nEMPLOYER                                          RESPONDENT \n \n \nNAT’L FIRE INS. CO. OF HARTFORD/ \nCNA INS. CO.,   \nINS CARRIER/TPA                                    RESPONDENT \n \n           \nOPINION AND ORDER FILED MAY 10, 2023 \n \nHearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), \nAdministrative Law Judge (ALJ) Mike Pickens, on February 9, 2023, in El Dorado, Union County, \nArkansas. \n \nThe  claimant  was  represented  by  the  Honorable Gregory  R.  Giles,  Moore,  Giles  &  Matteson, \nTexarkana, Miller County, Arkansas.   \n \nThe respondents were represented by the Honorable Karen H. McKinney, The Barber Law Firm, \nLittle Rock, Pulaski County, Arkansas. \n \nINTRODUCTION \n \n     In  the  Amended  Prehearing  Order  filed  November  28,  2023,  the  parties  agreed  to  the \nfollowing stipulations:   \n1. The   Arkansas   Workers’   Compensation   Commission   (the   Commission)   has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed  with  the  claimant  at  all \nrelevant times, including May 2, 2019, when the claimant sustained a compensable \ninjury  to  his  left  arm  for  which  the  respondents  paid  medical  and  indemnity \nbenefits. The claimant alleges he also sustained a “compensable injury”  to  his \nthoracic spine on this same date, May 2, 2022. \n                                                     \n3.   The claimant’s average weekly wage  (AWW)  was  $794.18,  which  would  entitle \nhim to weekly indemnity rates of $529.00 for temporary total disability (TTD), and \n$397.00  for  permanent  partial  disability  (PPD)  benefits  if  his  claim  is  deemed \ncompensable. \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n2 \n \n4. The respondents controvert the claimant’s alleged upper back/thoracic spine injury \nin its entirety. \n \n5. All parties specifically reserve any and all other issues for future determination \n            and/or hearing.                                                \n(Commission Exhibit 1 at 1-2; Hearing Transcript at 5-6). Pursuant to the parties’ mutual \nagreement the issues litigated at the hearing were:   \n1. Whether the claimant sustained a “compensable injury” to his thoracic spine within \nthe  meaning  of  the Arkansas’ Workers’ Compensation Act (the Act)  on  May  2, \n2019. \n \n2. If the claimant’s alleged upper back/thoracic spine injury is deemed compensable, \nthe extent to which he is entitled to medical, TTD, and PPD benefits. \n   \n3.       Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n4. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; T. at 5-6). Note the claimant withdrew his contention that he also sustained \na compensable injury to his ribs as a result of the subject May 2, 2019, work incident. (Comms’n \nEx. 1 at 2; T. 5).   \n The claimant contends he sustained a compensable injury to his upper back/thoracic spine \non May 2, 2019. He contends the medical treatment he has had on his thoracic spine/upper back is \nrelated to and reasonably necessary for treatment of his upper back/thoracic spine injury and the \nrespondents should be ordered to pay for it. He contends the respondents should be responsible for \npayment of his treatment at the Veterans’ Administration Hospital (VA), for which the VA is \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n3 \nseeking reimbursement from him, as well as any and all payments Blue Cross/Blue Shield (BCBS) \nhas  made  for  his  medical  treatment  and/or  related  expenses  for  which  BCBS  is  seeking \nsubrogation.  The  claimant  further  contends  he  is  entitled  to  additional  reasonably  necessary \nmedical treatment related to his upper back/thoracic spine injury; to TTD benefits from on or about \nJuly  9,  2019,  until  he  reached  maximum  medical  improvement  (MMI)  on  or  about  October  21, \n2021; and to PPD benefits based on a permanent anatomical impairment rating of at least 13% (not \n12% as he contended in the amended prehearing order) pursuant to the applicable AMA Guides to \nthe Evaluation of Permanent Impairment (American Medical Association 4\nth\n Edition) (the AMA \nGuides). Finally, the claimant contends he is entitled to wage loss disability benefits in excess of \nany permanent impairment rating; and that his attorney is entitled to a controverted attorney’s fee \nbased on any and all indemnity benefits the Commission may award him. The claimant specifically \nreserves any and all other issues for future litigation and/or determination. (Comms’n Ex. 1 at 2-\n3; T. 5-6). \n The respondents contend the claimant has received all benefits to which he is entitled by \nlaw for the subject May 2, 2019, work incident. The respondents contend the claimant’s thoracic \ndisc  herniation  diagnosed  in  December  2020  is  not  causally  related  to  the  minor  compensable \ninjury of May 2, 2019, and therefore, the claimant cannot meet his burden of proof pursuant to the \nAct in demonstrating he sustained a “compensable injury” to his thoracic spine. The respondents \ncontend further that if the claimant’s upper back/thoracic spine injury is deemed compensable he \nis entitled to a six percent (6%) permanent anatomical impairment rating for a two (2)-level fusion \npursuant  to  the  applicable AMA  Guides.  The  respondents  specifically  reserve any  and  all  other \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n4 \nissues for future litigation and/or determination. (Comms’n Ex. 1 at 3; T.6).   \n     The  record  herein  consists  of  the  hearing  transcript,  and  any  and  all  exhibits  contained \ntherein and attached thereto. \n               STATEMENT OF THE CASE \nThe claimant, Mr. Michael W. Mitchell (the claimant), was 60 years old at the time of the \nhearing, was 57 years old at the time of the subject work incident, Thursday, May 2, 2019. On that \nday the claimant was working as a yard man for Jet Asphalt. His primary job duties were keeping \nthe plant clean and mowed. The claimant testified that on May 2, 2019, the plant was shut-down \nfor maintenance, and he and co-workers were moving a three (3)-foot by six (6)-foot metal plate \nto inspect it for damage when the plate fell on him, knocking him to the ground, pinning his right \narm against his chest and neck. A co-worker lifted the metal plate off of him, while another co-\nworker  pulled  him  out  from  under  the  plate.  The  claimant  testified  his  sternum  was  hurting,  he \nthought  he  may  have  cracked  a  rib,  and  he  had  some  scrapes  on  his  left  arm  and  back.  The \nclaimant’s supervisor immediately took him to the doctor who conducted a physical examination \nand  ran  some  diagnostic  tests  including  CT  scans  and  X-rays.  The  claimant  testified  that  after \nreviewing the diagnostic test results the doctor did not find anything wrong with him, and released \nhim to return to work the following Monday, which would have been May 5, 2019. The claimant \ndenied he was experiencing any back pain at that time. The claimant had been treated for a hernia \nin the past and was experiencing pain similar to pain he had experienced in the past when he had \na hernia. Medical records indicate the claimant sought treatment for this pain in June 2019, and his \ndoctor took him off work for these hernia complaints from 6/19/2019 through 6/24/2019, and again \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n5 \nfrom 6/24/2019 through 7/9/2019. Thereafter, when the claimant returned to work, he was offered \nwork as a flagger on a road crew, but he refused to perform this work because he said he could not \nsee well enough to do the job. He then was terminated for insubordination. (T. 15-41; Claimant’s \nExhibit 1 at 2-15). \nThereafter,  the  claimant  did  not  see  a  doctor  again  until  July  15,  2020,  when  he  sought \ntreatment  for  a  pulled  groin  muscle  and  hypogastric  abdominal  pain  (abdominal  pain  below  his \nstomach) at the Dallas County Medical Center. (CX1 at 19-21). He next sought treatment at the \nVeterans’ Administration Hospital (VA)  on  January  28,  2020,  through  December  21,  2020,  for \ncomplaints of pain in his right testicle and right breast. At the first VA visit in January 2020, the \nclaimant  mentioned  the  subject  work  incident  to  his  treating  physician,  stating  his  right-sided \nabdominal and pelvic pain had been hurting since the May 2019 work incident. An abdominal and \npelvic CT scan revealed no acute bone fractures and, “No acute findings in the abdomen or pelvis; \nhowever, the CT scan did reveal some abnormalities in the claimant’s left hip, “consistent with \npossible femoral acetabular impingement syndrome.” A radiology report dated March 25, 2021, \nnoted some abnormalities in the claimant’s left hip including, “Incidental note is made of a T1 \nhypointense lesion in the left ilium most compatible with a bone island.” (CX1 at 22-39; 25-27). \nAn MRI of 11/05/2020, revealed, “no acute fracture or dislocation” in the claimant’s right hip, as \nwell  as  mild  degenerative  changes,  but  no  acute  fracture  or  dislocation.  (CX1  at  28).  A  METS \nbone  scan  of  12/21/2020  was  compared  with  an  MRI  of  the claimant’s thoracic spine dated \n12/02/2020, and a CT scan of his abdomen and pelvis dated 11/12/2020, and all of the bone scan \nfindings were deemed to be, “suggestive of degenerative changes.” (CX1 at 39).  \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n6 \nOn  February  8,  2021,  the  claimant  saw  Dr.  Matthew  Helton,  a  neurology/neurosurgical \nresident  at  the  University  of  Arkansas  for  Medical  Sciences  (UAMS),  complaining  of  right  hip \npain, and a hernia he believed developed a month or so after the May 2019 work incident; and he \ncomplained of problems walking, of stumbling, and progressive pain in the area of his groin and \nright testicle. (CX1 at 40). After seeing some other physicians at UAMS he came under the care \nof Dr. Thomas G. Pait, the chief of neurosurgery who ordered an MRI that revealed, “a large disc \nherniation at the mid-lower thoracic spine with compression of the spinal cord...a T10-T11 disc \nherniation spinal cord compression and myelomalacia”, which is a softening of the spinal cord \nbelow  the  area  of  a  spinal  cord  compression  from  a  lesion  or  herniation.  (CX1  at  42-43).  The \nUAMS physicians also noted degenerative changes in the claimant’s cervical and thoracic spine. \n(CX1 at 62-63). The UAMS physicians ultimately diagnosed the claimant with a herniation of the \nT10-11 interveterbral disc of this thoracic spine with resulting myelopathy, and on May 11, 2021, \nDr.  Pait.  performed  surgery  to  decompress the  herniated  thoracic  disc,  as  well  as  to  fuse  levels \nT10-12; and he continued follow-up of the claimant through November 24, 2021. (CX1 at 67-238). \nIn a letter to the claimant’s attorney dated February 22, 2022, Dr. Pait opined: \n     Within a reasonable degree of medical certainty, the trauma [from the \n     May 2, 2019, work incident] did not cause the calcification of the inter- \n     vertebral disc. Disc calcification is the accumulation of calcium phosphate \n     dehydrate or hydroxyapatite crystals in the nucleus pulposus of the disc. It \n     takes many years for the calcification to develop. The trauma did not cause   \n     the calcification of the disc; however, the trauma may have aggravated a pre- \n     existing problem.      \n \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n7 \n(CX1 at 239) (Bracketed material added).   \n     By letter dated March 3, 2022, to Dr. Wayne Bruffett, the claimant’s attorney requested that \nDr. Bruffett perform an independent medical evaluation (IME) of the claimant in order to address \nthe causation of the claimant’s herniated thoracic disc,  and  to  determine  the  percentage  of  the \nclaimant’s permanent anatomical impairment, if any, related to the disc herniation and Dr. Pait’s \nsurgery. (CX1 at 240-241). Dr. Bruffett performed the IME on April 4, 2022. (CX1 at 242-247). \nDr. Bruffett stated it was his opinion “within a reasonable degree of medical certainty the herniated \nthoracic disc that was calcified was rendered symptomatic as a consequence of the May 2, 2019 \naccident.” (CX1 at 246). Dr. Bruffett assigned the claimant a 13% to the body-as-a-whole (BAW) \npermanent anatomical impairment rating based on a two (2)-level fusion with residual symptoms. \n(CX1 at 247). Thereafter, the respondents requested and the parties took Dr. Bruffett’s evidentiary \ndeposition which, along with other testimony and evidence relevant to my decision herein will be \nexamined in greater detail in the, “Discussion” section of this opinion, infra.   \n     The  claimant  testified  he  is  incapable  of  being  trained  to  do  any  other  job.  He  agreed  he \nworked for over nine (9) or ten (10) different employers to include the military, Potlatch, Hole-in-\nOne, International Paper, Idaho Lumber, and Jet Asphalt. He agreed that he had to be trained by \neach of his  employers  as to how to do the jobs he was hired to perform.  When  asked on cross-\nexamination about the gap in his  employment at  Potlatch, the claimant readily admitted he was \nincarcerated  from  1995  to  1997  for  sexual  abuse,  which  he  further  conceded  was  in  fact  child \nmolestation. The claimant also admitted that after being released from prison, he was sent back for \na parole violation for drinking and being in a prohibited location. The claimant admitted that in \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n8 \nthe past he had a problem with drugs and alcohol. He further admitted that in addition to quitting \nJet Asphalt over a dispute at work, he also quit his job at Hole-in-One over a disagreement with \nhis employer rather than face termination. (T. 62-85). \n     The  claimant  filed  for  and  started  receiving  Social  Security  disability  (SSD)  benefits  in \n2021.  In  addition  to  his  left  leg  foot  drop,  the  claimant  testified  that  he  has  pain,  dizzy  spells, \nmemory loss, and balance issues. He testified that he cannot bend or twist or move like he used to. \nHe said he is able to vacuum, do the dishes, clean the kitchen and do the laundry. He is also able \nto mow his yard with a zero (0)-turn mower. The claimant has a current driver’s license and is able \nto drive and operate a vehicle safely. He has not attempted to seek any employment or to return to \nwork since Dr. Pate released him. (T. 84-108).   \n     The claimant described two (2) previous back injuries. The first injury occurred around 2010 \nwhile he was working for Hole-in One when he was lifting a 50-pound box and he pulled a muscle \nin his back for which he received a few weeks of chiropractic treatment. The claimant sustained \nanother  back  injury  in  2011  while  moving  furniture  at  his  house.  He  testified  that  other  than \nrequiring a few muscle relaxers from that injury, he was fine. The claimant testified he recovered \nfrom both those back injuries, and that he never had any significant injuries or problems with his \nback since. The claimant admitted he broke his leg in 2015, which caused him to miss work. (T. \n58-60; 86). \n     When questioned about Respondents’ Exhibit 2 – a photograph the claimant posted on his \nFacebook page dated July 2, 2017, which shows him laying on a hospital bed – he testified he had \na wreck while test-driving a motorcycle when the front brake or wheel locked up resulting in the \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n9 \nhis  being  thrown  from  the  motorcycle.  As  the  claimant  described  the  incident  on  his  Facebook \npost: “This is why I sold my bike. Test-drove a 1985 Honda Shadow 750. Front brakes locked up \nand I ate the blacktop. Broke 3 ribs and had awesome road rash.” (RX2 at 1-2; T. 87). The claimant \ndenied any injury to his back or spine from this motorcycle accident and claimed he did not miss \nany  time  from  work  because  he  was  already  on  vacation.  (RX2  at  1-2;  T.86-89).  But  Ms.  Lisa \nWoolsey, Jet Asphalt’s manager, testified the claimant was off work for three (3) weeks on medical \nleave, not vacation, after the motorcycle wreck. (T. 131). There is no evidence the claimant told \neither Dr. Pait or Dr. Bruffett about this motorcycle accident where he broke (3) ribs. Finally, the \nclaimant  testified  that  all  his  prior  employment  experience  was  labor  intensive  and  he  did  not \nbelieve he could perform this type of work any longer. (T. 58-60; RX2 at 1-2; T. 86-89).   \n                             DISCUSSION \nThe Burden of Proof \n     When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord as a whole, whether the party having the burden of proof on the issue has established it by \na  preponderance  of  the  evidence. Ark.  Code  Ann. §  11-9-704(c)(2)  (2023  Lexis  Replacement). \nThe  claimant  has  the  burden  of  proving  by  a  preponderance  of  the  evidence  he  is  entitled  to \nbenefits. Stone  v.  Patel, 26  Ark.  App.  54,  759  S.W.2d  579  (Ark.  App.  1998). Ark.  Code  Ann. \nSection 11-9-704(c)(3) (2023 Lexis Repl.) requires the ALJ, the Commission, and the courts “shall \nstrictly construe” the Act, which also requires them to read and construe the Act in its entirety, and \nto harmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n10 \n899  (Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987).  \n     All claims for workers’ compensation benefits must be based on proof. Speculation  and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Dena Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.   \nThe  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \ncredible  given  the  totality  of  the  credible  evidence  of  record. Minnesota  Mining  &  Mfg’ing  v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n11 \nCompensability of the claimant’s alleged thoracic spine injury \n     The threshold question to be decided in this case is whether the claimant has met his burden \nof proof in demonstrating he sustained a compensable injury within the Act’s definition to his \nlumbar spine. For any specific incident injury to be compensable, the claimant must prove by a \npreponderance of the evidence that his injury: (1) arose out of and in course of his employment; \n(2) caused internal or external harm to her body that required medical services; (3) is supported   \nby objective findings, medical evidence, establishing the alleged injury; and (4) was caused by a \nspecific  incident  identifiable  by  time  and  place  of  occurrence. Ark.  Code  Ann.  §  11-9-102(4); \nCossey v. Gary A. Thomas Racing Stable, 2009 Ark. App. 666, at 5, 344 S.W.3d 684, 687 (Ark. \nApp. 2009). The claimant bears the burden of proving the compensable injury by a preponderance \nof the credible evidence. Ark. Code Ann. § 11-9-102(4)(E)(i); and Cossey, supra.   \n     Moreover, the claimant must prove a causal relationship exists between her employment and \nthe alleged injury. Wal-Mart Stores, Inc., v. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, \n892 (Ark. App. 2002) (citing McMillan v. U.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 \n(Ark.  App.  1997).  Objective  medical  evidence  is  not  always  essential  to  establish  a  causal \nrelationship  between  the  work-related  accident  and  the  alleged  injury  where  objective  medical \nevidence exists to prove the existence and extent of the underlying injury, and a preponderance of \nother nonmedical evidence establishes a causal relationship between the objective findings and the \nwork-related  incident  in  question. Flynn  v.  Southwest  Catering  Co.,  2010  Ark.  App.  766,  379 \nS.W.3d 670 (Ark. App. 2010).     \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n12 \n     “Objective findings” are those findings which cannot come under the voluntary control of the \npatient. Ark. Code Ann. § 11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, at \n80, 250 S.W.3d 263, at 272 (Ark. App. 2007). Objective findings “specifically exclude subjective \ncomplaints or findings such as pain, straight-leg-raising tests, and range-of-motion tests.” Burks v. \nRIC, Inc., 2010 Ark. App. 862 (Ark. App. 2010).   \n      It is a black letter principle of workers’ compensation law that an employer takes the \nemployee  as  he  finds  him;  and  an  employment-related  incident  that  aggravates  a  preexisting \ncondition(s)  is  (are)  compensable. Heritage  Baptist  Temple  v.  Robison,  82  Ark.  App.  460,  120 \nS.W.3d  150  (Ark.  App.  2003).  Stated  another  way,  a  preexisting  disease  or  infirmity  does  not \ndisqualify  a  claim  if  the  work-related  incident  aggravated,  accelerated,  or  combined  with  the \ndisease  or  infirmity  to  produce  the  disability  for  which  the  claimant  seeks  benefits. Jim  Walter \nHomes  v.  Beard,  82  Ark.  App.  607,  120  S.W.3d  160  (Ark.  App.  2003).  The  aggravation  of  a \npreexisting, otherwise non-compensable condition by a compensable injury is itself compensable. \nOliver v. Guardsmark, 68 Ark. App. 24, 3 S.W.3d 336 (Ark. App. 1999). An aggravation is a new \ninjury  resulting  from  an  independent  incident. Crudup  v.  Regal  Ware,  Inc.,  341  Ark.  804,  20 \nS.W.3d 900 (Ark. App. 2000) (Emphasis added). Of course, since it is a new injury resulting from \nan independent cause, any alleged aggravation of a preexisting condition must meet the Act’s \ndefinition of a “compensable injury” in order for the claimant to prove compensability. Farmland \nIns. Co. v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (Ark. App. 1996). \n      Concerning the proof required to demonstrate the aggravation of a preexisting condition, our \nappellate courts have consistently held that since an aggravation is a new injury, a claimant must \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n13 \nprove it by new objective evidence of a new injury different than the preexisting condition. Vaughn \nv. Midland School Dist., 2012 Ark. App. 344 (Ark. App. 2012) (citing Barber v. Pork Grp., Inc., \n2012 Ark. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. 130, 382 \nS.W.3d 1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 (Ark. App. \n2010). Where the only objective findings present are consistent with prior objective findings or \nconsistent with a long-term degenerative condition rather than an acute injury, this does not satisfy \nthe  objective  findings  requirement  for  the  compensable  aggravation  of  a  preexisting  condition \ninjury. Vaughn, 2012 Ark. App. 344, at 6 (holding that Arkansas courts have interpreted the Act \nto require “new objective medical findings  to  establish  a  new  injury  when  the  claimant  seeks \nbenefits  for  the  aggravation  of  a  preexisting  condition”); Barber,   supra   (affirming   the \nCommission’s denial of an aggravation of a preexisting condition claim where the MRI findings \nrevealed a degenerative condition, with no evidence of, and which could not be explained by, an \nacute injury) (Emphases added).   \n     Based on the law as applied to the applicable facts of this case, I find the claimant has failed \nto  meet  his  burden  of  proof  in  demonstrating  his  thoracic  spine  condition  constitutes  a \n“compensable injury” within the Act’s meaning, for the following reasons. \n     First, while a medical opinion stated within a reasonable degree of medical certainty is not \nnecessary to prove causation, in a case such as this one where the claimant had two (2) previous \nback injuries and other medical issues that he apparently believed were the cause of his pain – and \nhe broke his leg, and had an apparently rather significant motorcycle accident where he broke three \n(3)  ribs  (and,  of  course,  the  rib  bones  are  connected  to  the  thoracic  spine) –  a  medical  opinion \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n14 \nconcerning  causation  is  necessary.  This  is  especially  true  where  the  record  is  devoid  of  any \nevidence the claimant told either Dr. Pait or Dr. Bruffett about the 2017 motorcycle accident in \nwhich he, “ate the asphalt...broke three ribs and had awesome road rash.” In light of this incident \nand  the  fact  that  neither  Drs.  Pait  nor  Bruffett  were  told  about  it,  it  would  constitute  sheer \nspeculation and conjecture to relate the preexisting thoracic spine condition (which was calcified \nproving the objective medical evidence of injury was preexisting) to the subject work incident of \nMay 2, 2019. Dena, supra. The respondents introduced prior medical records that confirmed the \nclaimant did in fact have back pain and lumbar spasms which required medical treatment. Before \nthe work incident. These medical records further  show, as he testified, the claimant would seek \nmedical treatment when he had a medical issue or pain. \n     Second,  and  significantly,  neither  Dr.  Pait  or  Dr.  Bruffett  were  able  to  provide  an  opinion \nconcerning  causation  that  meets  the  standards  required  by  the  Act  and  applicable  case  law.nIn \nresponse to the claimant’s attorney’s inquiry, in his letter dated February 22, 2022, Dr. Pait was \nunable to provide the requisite opinion. (CX1 at 239, and supra). \n \n   In his deposition the claimant’s chosen IME physician, Dr. Bruffett, concluded the claimant’s \nherniated thoracic disc calcified well before the May 2, 2019, work incident. Dr. Bruffett related \nthe claimant’s symptoms to the May 2, 2019 accident based upon the claimant’s history of no \nsymptoms before the accident and then complaining of symptoms after the accident. Dr. Bruffett \ntestified he would have anticipated the claimant to have symptoms from the accident “pretty quick” \nafter it occurred. Dr. Bruffett defined “pretty quick” to be “days or a few weeks.” When claimant’s \ndeposition testimony of how he felt immediately after the accident was read to Dr. Bruffett, Dr. \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n15 \nBruffett testified that claimant’s complaints following  the  subject  work  incident  did  not  elicit \nconcern for a thoracic disc herniation. Dr. Bruffett’s deposition does not meet the Act’s standards \nthat a medical opinion concerning causation must be stated within a reasonable degree of medical \ncertainty.  If  anything, Dr. Bruffett’s evidentiary deposition testimony deposition  demonstrates, \nonce  again,  that  it  would  constitute sheer speculation and conjecture to attribute the claimant’s \nherniated thoracic disc to the subject May 2, 2019, work incident. (Respondents’ Exhibit 3).        \n     Finally, Jet Asphalt’s manager, Ms. Lisa Woolsey, was a demonstrably credible and articulate \nwitness. She testified the claimant returned to work for Jet Asphalt on Monday, May 6, 2019 and \nhe continued to work until he was taken off work by his doctor on June 19, 2019. Ms. Woolsey \ndescribed  two  (2)  separate  conversations  she  had  with  the  claimant  after  the  May  2019  work-\nrelated  incident.  Directly  and  credibly  contradicting the  claimant’s  testimony,  Ms.  Woolsey \ntestified the claimant brought the weekly paperwork from the Fordyce plant to the El Dorado office \non two (2) separate occasions between his return to work after the subject incident and the date he \nquit  because  he  would  not  perform  the  light  duty  flagging  job.  Ms.  Woolsey  testified  that  the \nFordyce plant only had three (3) employees and that at times the claimant would be required to \ntake  the  paperwork  to  El  Dorado  when  the  other  two  (2)  employees  were  busy.  During  both  of \nthose brief visits, Ms. Woolsey engaged the claimant in conversation regarding the May 2019 work \nincident and asked him how he was doing. She testified the claimant joked about having a hard \nhead  and  advised  that  he  was  doing  fine.  Ms.  Woolsey  also  described  her  encounter  with  the \nclaimant when he personally brought in the off-work slip from his primary care physician (PCP) \ntaking him off work on June 19, 2019. Ms. Woolsey testified that the claimant reported to her that \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n16 \nhe had to be off work for a muscle in couple of weeks because he pulled his groin area and had a \nhernia. He told her he had done that several times before and assured her that he was going to be \nokay. And, again, significantly the claimant’s motorcycle wreck, Ms. Woolsey testified after the \nJuly 2017 motorcycle accident in which the claimant broke three (3) of his ribs, he was in fact off \nwork for three (3) weeks following that accident. Ms. Woolsey explained that the claimant took \nmedical leave for the entire three (3) weeks and that he was not on vacation as employees are only \nallowed two (2) weeks of vacation, and that it must be taken during the two (2) weeks in December \nthe plant is in shutdown each year. Ms. Woolsey confirmed the claimant had taken off work right \nbefore his accident to visit a member of his wife’s family who was ill, but it was not his two (2)- \nweek vacation, just a few days to travel to Missouri and back. On cross-examination, Ms. Woolsey \ntestified the only injuries she could ascertain the claimant sustained to his back on May 2, 2019, \nwere from the scratches and bruises. (T. 120-132).   \n    Therefore, based on the applicable law as applied to the facts of this case, I hereby make the \nfollowing:  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The  stipulations  contained  in  the  Amended  Prehearing  Order  filed  November28, \n2022, to which the parties agreed and affirmed on the record at the hearing hereby \nare accepted as facts.   \n \n2. The claimant has failed to meet his burden of proof in demonstrating he sustained \na “compensable injury” within the Act’s specific meaning to his thoracic spine as a \nresult of the May 2, 2019, work incident. \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n17 \n \n3. Therefore,  the  other  issues  litigated  at  the  hearing  concerning  the  claimant’s \nentitlement  to  additional  medical  care  for  his  thoracic  spine  condition;  to  the \npayment  of  additional  TTD  benefits;  PPD  benefits  based  on Dr. Bruffett’s 13% \nBAW  permanent  anatomical  impairment  rating;  as  well  as  wage  loss  disability \nbenefits in excess of Dr. Bruffett’s impairment rating are rendered moot. \n \n4. The claimant’s attorney is/is not entitled to a controverted attorney’s fee on these \nfacts. \n \n      Therefore, for all the aforementioned reasons, this claim is hereby respectfully denied and \ndismissed. If they have not already done so the respondents shall pay the court reporter’s fee within \ntwenty (20) days of their receipt of this opinion and order. \nIT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H102851 MICHAEL W. MITCHELL, EMPLOYEE CLAIMANT JET ASPHALT & ROCK CO., INC., EMPLOYER RESPONDENT NAT’L FIRE INS. CO. OF HARTFORD/ CNA INS. CO., INS CARRIER/TPA RESPONDENT OPINION AND ORDER FILED MAY 10, 2023 Hearing conducted before the Arkansas Workers’ Co...","fetched_at":"2026-05-19T23:07:26.262Z","links":{"html":"/opinions/alj-H102851-2023-05-10","pdf":"https://labor.arkansas.gov/wp-content/uploads/MITCHELL_MICHAEL_H102851_20230510.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}