{"id":"alj-H103439-2023-03-15","awcc_number":"H103439","decision_date":"2023-03-15","opinion_type":"alj","claimant_name":"James Rogers","employer_name":"Midamerica Hotels Corp., D/b/a Burger King Restaurants","title":"ROGERS VS. MIDAMERICA HOTELS CORP., d/b/a BURGER KING RESTAURANTS AWCC# H103439 MARCH 15, 2023","outcome":"granted","outcome_keywords":["granted:5"],"injury_keywords":["back","lumbar","hip","knee","ankle"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Rogers_James_H103439_20230315.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Rogers_James_H103439_20230315.pdf","text_length":60089,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H103439 \n \n \nJAMES ROGERS, EMPLOYEE CLAIMANT \n \nMIDAMERICA HOTELS CORP., d/b/a \n BURGER KING RESTAURANTS, \n EMPLOYER RESPONDENT \n \nPREVISOR INS. CO., CARRIER RESPONDENT \n \n \nOPINION FILED MARCH 15, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  December  16,  2022,  in \nJonesboro, Craighead County, Arkansas. \n \nClaimant represented by Mr. Daniel E. Wren, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by  Mr.  Guy  Alton  Wade,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On  December  16,  2022,  the  above-captioned  claim  was  heard  in  Jonesboro, \nArkansas.    A  prehearing  conference  took  place  on  October  3,  2022.    The  Prehearing \nOrder  entered  on  that  date  pursuant  to  the  conference  was  admitted  without  objection \nas  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n The   parties   discussed   the   stipulations   set   forth   in   Commission   Exhibit  1.  \nFollowing  an  additional  one  reached  at  the  hearing,  they  are  the  following,  which  I \naccept: \n\nROGERS – H103439 \n \n2 \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The  employer/employee/carrier  relationship  existed  at  all  relevant  times, \nincluding the alleged date of injury, April 8, 2021. \n3. Claimant’s average weekly wage of $979.57 entitles him to compensation \nrates of $653.00/$490.00. \n4. The  claim  was  initially  accepted  as  compensable,  with  both  medical  and \nindemnity benefits paid.  However, it was later controverted in its entirety. \n5. In  the  event  that  Claimant  proves  his  entitlement  to  indemnity  benefits, \nRespondents would be entitled to an offset under Ark. Code Ann. § 11-9-\n411 (Repl. 2012) concerning long-term disability benefits that were paid to \nhim in connection with his alleged lower back injury. \nIssues \n The parties discussed the issues set forth in Commission Exhibit 1.  Following a \nfifth one added at the hearing, the following were litigated: \n1. Whether  Claimant  sustained  a  compensable  injury  by  specific  incident  to \nhis lower back in the form of a herniation of L4-5. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n3. Whether Claimant is entitled to temporary total disability benefits from the \ndate last paid to a date yet to be determined. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \n\nROGERS – H103439 \n \n3 \n5. Whether,  in  the  event  Claimant  establishes  his  entitlement  to  indemnity \nbenefits, Respondents are entitled to an offset under Ark. Code Ann. § 11-\n9-411 (Repl. 2012) concerning his receipt of long-term disability benefits. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n1. Claimant  contends  that  on  or  about  April  8,  2021,  he  was  preparing \nsandwiches  at  the  respondent’s  Burger  King restaurant  when  he  felt  a \nsudden pop in his lower back.  This caused him to fall to the ground and \nlose control of his bladder. \n2. Claimant  has  been  treated  by  Dr.  Fereidoon  Parsioon,  and  has  had  an \nMRI  of  his  lower  back.    The  MRI  revealed  a  right  L4-5  paracentral \nruptured disc. \n3. This claim was accepted, and all benefits were paid until August 13, 2021, \nwhen Dr. John Brophy opined that the disc herniation was not related to a \nwork injury. \n4. All other issues are reserved. \nRespondents: \n1. Respondents  contend  that  Claimant’s  treating  physician,  Dr.  Brophy, \ndetermined  that  Claimant’s  complaints  and  need  for  additional  treatment \nare not related to any claimed work injury.  As a result, it is Respondents’ \n\nROGERS – H103439 \n \n4 \nposition that Claimant is not entitled to any additional medical or indemnity \nbenefits. \n2. Claimant did not sustain a compensable disc herniation at work. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports  and  other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity to  hear  the \ntestimony of the witnesses and to observe their demeanor, I hereby make the following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann. §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant   has   proven   by   a   preponderance   of   the   evidence   that   he \nsustained  a  compensable  injury  to  his  lower  back,  in  the  form  of  a \nherniation at L4-5 , by specific incident on April 8, 2021. \n4. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled    to    reasonable    and    necessary    medical    treatment    of    his \ncompensable  lower  back  injury,  including  the  proposed  lumbar  fusion \nsurgery   and   related   treatment.      Moreover,   he   has   proven   by   a \npreponderance of the evidence that all of his lower back treatment on and \nafter April 8, 2021, that is in evidence was reasonable and necessary. \n\nROGERS – H103439 \n \n5 \n5. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  additional  temporary  total  disability  benefits  from  the  date  last \npaid to a date yet to be determined. \n6. Claimant has proven by a preponderance of the evidence that his counsel \nis  entitled  to  a  controverted  attorney’s  fee on  the  indemnity  benefits \nawarded herein, pursuant to Ark. Code Ann. § 11-9-715 (Repl. 2012). \n7. In  accordance  with  Stipulation  No.  5  and  Finding/Conclusion  No.  5, \nRespondents  have  proven  by  a  preponderance  of  the  evidence  that  they \nare  entitled,  per  Ark.  Code  Ann.  § 11-9-411  (Repl.  2012),  to  an  offset \nconcerning    long-term    disability    benefits    received    by    Claimant    in \nconnection with his April 8, 2021, compensable lower back injury. \nCASE IN CHIEF \nSummary of Evidence \n The hearing witnesses were Claimant and his wife, Sami Rogers. \n In  addition  to  the  Prehearing  Order  discussed  above,  admitted  into  evidence  in \nthis case were the following:  Claimant’s Exhibit 1, a compilation of his medical records, \nconsisting   of   two   abstract/index   pages   and 38   numbered   pages   thereafter; and \nRespondents’  Exhibit  1,  another  compilation  of  Claimant’s  medical  records,  consisting \nof one index page and 21 numbered pages thereafter. \n\nROGERS – H103439 \n \n6 \nAdjudication \nA. Compensability \n Introduction.    Claimant  has  argued  that  he  suffered  a  compensable  injury  to his \nlower back in a specific incident on April 8, 2021, while working for Respondent Burger \nKing.  Respondents deny this. \n Standards.    In  order  to  prove  the  occurrence  of  an  injury  caused  by  a  specific \nincident identifiable by time and place of occurrence, a claimant must show that:  (1) an \ninjury  occurred  that  arose  out  of  and  in  the  course  of  his  employment; (2)  the  injury \ncaused internal or external harm to the body that required medical services or resulted \nin  disability  or  death;  (3)  the  injury  is  established  by  medical  evidence  supported  by \nobjective  findings,  which  are  those  findings  which  cannot  come  under  the  voluntary \ncontrol  of  the  patient;  and  (4)  the  injury  was  caused  by  a  specific  incident and  is \nidentifiable by time and place of occurrence.  Mikel v. Engineered Specialty Plastics, 56 \nArk.   App.  126,  938  S.W.2d   876   (1997).     If  a   claimant  fails  to   establish   by   a \npreponderance  of  the  evidence  any  of  the  above  elements,  compensation  must  be \ndenied.   Id.  This  standard  means  the  evidence  having  greater  weight  or  convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agric. Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The \n\nROGERS – H103439 \n \n7 \nCommission must sort through conflicting evidence and determine the true facts.  Id.  In \nso doing, the Commission is not required to believe the testimony of the claimant or any \nother  witness,  but may  accept  and  translate  into  findings  of fact  only  those portions of \nthe testimony that it deems worthy of belief.  Id. \n Evidence.    Sami  Rogers  testified  that  she  has  been  married  to  Claimant  since \nOctober  1996.    Very  shortly  thereafter,  Claimant  went  to  work  for  Respondent  Burger \nKing.   With  the  exception of a  two-year  stint in  the  late  1990s  during which  he  worked \nfor  Prestolite,  Claimant  has  worked  for  the  respondent  employer.   Mrs.  Rogers  related \nthat  in  2019,  her  husband  hurt  his  back  at  work.    Despite  three  to  four  months  of \nphysical therapy, his condition did not improve.  He ended up seeing Dr. Parsioon, who \nperformed surgery.  Thereafter, according to her, Claimant no longer had pain, and was \nable  to  resume  his  normal  household  duties.    At  that  time,  she  did  not  observe  him  to \nhave any physical limitations.  Claimant returned to Burger King in August of 2020.  To \nthe extent that  Mrs. Rogers was able to observe him while he was on the job, she did \nnot notice him having any problems performing his work duties.  He did not have to skip \nwork because of back problems at that time. \n Turning to April 7, 2021—the day before Claimant allegedly suffered the injury at \nissue—Ms. Rogers testified that he closed the store that night.  When he came home, \nshe did not observe him to be having any problems.  He did not complain of any pain.  \nClaimant  opened  the  Burger  King  outlet  in  Paragould  the  next  morning,  April  8,  2021.  \nShe  received  a  call  from  him  that  day.    He  informed  her  that  he  had injured  himself \nagain and that he needed to go to the hospital.  Because he wanted to go to the hospital \n\nROGERS – H103439 \n \n8 \nin  Jonesboro  as  opposed  to  Paragould,  Ms.  Rogers  picked  him  up  at  the Burger  King \nand  transported   him   to   the  emergency  room  at   St.   Bernard   Medical   Center   in \nJonesboro.  The following exchange occurred: \nQ. Where   was   he   having   pain   and   what   type   of   pain   was   he \ncomplaining of? \n \nA. It was in his back and it was exactly like it was before he’d had the \nfirst surgery.  Pain, burning in his back, burning and numbing down \nhis legs.  Exactly the same as before. \n \nNo  more  than  11  days  after  the  alleged incident  at  work,  Claimant  returned  to  Dr. \nParsioon.    As  before,  Claimant  initially  underwent  physical  therapy.    But his  back \nproblems worsened. \n Claimant,  who  is  47  years  old  and  a  college  graduate,  testified  that  he  was \nevaluated  at  a  hospital  for  muscle  spasms  in  his  back  when  he  was  in  the  eleventh \ngrade.  He has undergone chiropractic treatment in the past. \n During  the  period  at  issue,  he  was  employed  by  Respondent  Burger  King  as a \nstore manager.  He explained that in this position, he had to be ready to do any job at \nthe location in order to keep the operation running smoothly: \nIt  was  the expectation  of  ownership  that  we would  do  whatever  it  took  to \nmake  sure  our  stores  were  successful.    And  a  lot  of  times,  I  call  myself \n“the fireman,” because if somebody got behind, I would go put the fire out.  \nI  would  help  them  get  caught up.    I  would  go  and  fix  whatever  the  snare \nwas, because the thing with fast food is do it fast.  You’ve got to keep the \nline moving.  When it stops, that’s a problem. \n \n His testimony was that in 2019, he hurt his back when he slipped on a wet floor \nat  the  store  and “fell  straight  down.”  He  described  his  symptoms  as “[b]urning, \nnumbness,  prickly,  itching.    Various  different  sensations,  but  it  ached.”  After  physical \n\nROGERS – H103439 \n \n9 \ntherapy proved unsuccessful in relieving his symptoms, he was referred to Dr. Parsioon.  \nWhen  another  round  of  therapy  did  not  work,  the  doctor  operated.    Asked  if the \nprocedure worked, Claimant replied: \nApart  from  the  pain  of  the  incision,  it  was  amazing.    I  started  crying, \nbecause  the  pain  had  left.    It  was  gone.    My  leg  wasn’t  numb  anymore.  \nMy ache in my hip was gone.  My back was—it felt—it felt amazing. \n \nPrior to this surgery, Claimant kept at his job at Burger King, but with restrictions: \nI  was  not  allowed  to  lift,  I  believe  it  was  over  five  pounds.    That  was  the \nrestrictions, but I continued to work.  I was on my feet most of the day, just \nlike  normal.    I  did  a  lot  of  paperwork  and  things  that  would  normally  wait \nuntil  I  had  time  to  go  to  the  office,  but  I  still  worked  on  the  floor.    I  still \nexpedited,  which  means  I  filled  orders  and  got  them  out  to  customers.   I \nran  trays  out  to  the  tables.    I  still  worked  on  boards  [where  sandwiches \nwere  assembled].    I  still  made  sandwiches  and  things  like  that.    I  wasn’t \nable to bring product from the freezer out to the floor. \n \nFollowing  the  operation,  Claimant  was  off  work  for  about  ten  weeks.    Then, in  August \n2020,  he  went  back  to  Burger  King  and  resumed  his  full  role  as  manager.  He  was \nassigned  an  impairment  rating  of  eight  or  nine  percent  to  the  body  as  a  whole  as  a \nconsequence of this injury. \n Regarding  the  events  of  April  8,  2021,  Claimant  testified  that  he  arrived  at  the \nstore at 4:50 a.m.  He continued working in various capacities.  Except for counting the \nmoney  drawers  prior  to  opening,  all  of  his  tasks  took  place “on  the  floor”  because  no \nother  management  person  was  present.    At  approximately  1:40  to  1:45 p.m.,  he  took \nover  the  duties  of  the  sandwich  board,  an  insulated stainless  steel  workstation \napproximately 12 feet long where all broiled products of the restaurant were assembled.  \nHe related: \n\nROGERS – H103439 \n \n10 \nI  was  making  sandwiches  on  the  board.    I  had  dropped  a  bun  [into  the \ntoaster] and I had to go to the other end to get a . . . wrap and c[o]me back \nand  mark  my  wrap,  because  you  always  mark  your  wrap  while  you’re \nwaiting  on  the  bun  to  toast.    It  saves  time.    When  the  bun  dropped from \nthe  toaster  into  the  tray,  I  reached—I  turned,  pivoted  at  my  hips,  and \nreached with my right arm . . . I had to lean.  I was too far down the board   \n.  .  .  I  felt  a  pop  in  my  back  .  .  .  [i]f  you’ve  ever  been  shocked  by  an \nelectrical cord or stuck your finger in a light socket, it’s a powerful jolt, and \nI felt that from my back all the way down to the top of my foot.  It would be \nlike  a  strike  of  lightning  hit  [descriptive  sound]  like  quick.    It  was  just  like \nthat. \n \nThereafter, Claimant leaned over, and then squatted, in an effort to relieve the  tension \nin his back.  But this proved fruitless; his back “started knotting up and cramping.”  Two \nco-workers  noticed  his  movements  and  asked  him  if  he  was  okay.    His  response was \nthat he back was “on fire,” that he was unsure what was wrong.  Claimant  related that \nhis  intention  was  to  continue  making  sandwiches.  However,  the  co-worker  whom  he \nhad  relieved  returned  to  the  workstation.    So  Claimant  went  to  his  office  and “tried  to \ncollect [him]self, because [he] was scared.”  Asked why he had become frightened, he \nresponded:  “Because I had felt this pain before . . . [i]n 2019, when I injured my back \nthe first time.”  It was at this point that he had noticed that he had accidentally urinated \non himself. \n It  was  Claimant’s  testimony  that  his  symptoms  were  in  the “[s]ame  general \narea”—a palm-sized  spot—as  that  affected  in  the  2019  incident.  The  following \nexchange took place on cross-examination: \nQ. Now you had indicated to me before [during Claimant’s deposition] \nthat your back was doing like it did before or felt like it did before? \n \nA. I  was  having  symptoms  that  were  very  close  to  what  I  was  having \nbefore [in 2019], yes. \n \n\nROGERS – H103439 \n \n11 \n Per  Claimant,  he  contacted his  supervisor, District  Manager  Amy  Ketchum,  and \ninformed  her  that  he  had  hurt  his  back.    When  she  asked  him  if  an ambulance  was \nneeded, he responded that he would have his wife transport him so that he could treat \nat St. Bernard.  While waiting for his spouse to arrive at the store, Claimant filled out an \naccident  report  regarding  his  injury.    As  he  was  leaving  with  her, he “was  bent  over \nalmost parallel to the ground . . . [unable to] stand up straight.  Mrs. Rogers took his arm \nto support him during the walk to their vehicle, and then helped him get into his seat. \n At  the  hospital,  Claimant  was  transported  inside  in  a  wheelchair.    He  related  to \ntreating  personnel  what  had  happened.    Claimant  underwent  an  MRI.    Because  a \nneurologist was not on duty at St. Bernard, Dr. Parsioon was contacted.\n1\n  He was given \nan  off-work  slip  for  three  days.    While  he  was  at  home  during  that  time, he took \nIbuprofen,  applied  ice  to  his  back,  and  performed  the  therapy  exercises he  had  been \ngiven previously. \n Claimant  went  back  to  work  the  following  Monday.    The  day  began with  his \ncatching up on restaurant paperwork as well as filling orders in the front.  However, this \nchanged when his assistant manager had to leave.  The following exchange occurred: \nQ. Tell me what you had to start doing now? \n \nA. I was filling orders for drive-thru and front counter both at the same \ntime, so there were three of us up front and two in the kitchen.  We \nnormally  have  a  first  window,  a  second  window,  and  a  bunch  of \nother  people,  but  I  was  in  the  middle  and  I  had  to  fill  every  single \norder that was coming through. \n \nQ. And what was your pain like? \n \n \n1\nI note that this is at odds with the record of this visit, which reflects that Dr. Harry \nFriedman was consulted.  See infra. \n\nROGERS – H103439 \n \n12 \n \nA. It was intense.  It was very high. \n \nClaimant alerted his supervisor of this situation and his fear that the restaurant’s level of \nservice  was  suffering.    The  vice  president  of  company  operations,  John  Echimovich, \ncalled him.  After being informed that while Claimant had been taken off work for three \ndays, he had been instructed to see Parsioon as soon as possible, Echimovich told him \nthat he had to leave work.  Claimant did as he was told; and his testimony was that he \nhas not returned to work there since then. \n When  Claimant  saw  Dr.  Parsioon,  he  first  underwent  conservative  treatment  in \nthe  form  of  four  weeks  of  physical  therapy.    Thereafter,  the  doctor  referred  him  to  Dr. \nBrophy.   It  was  Claimant’s understanding  that  Parsioon  did not  perform  spinal  fusions, \nbut  that  Brophy  specialized  in  them—and  that  this  was  the  reason  for  the  referral.  \nAccording  to  Claimant,  after  he  saw  Dr.  Brophy,  a  representative  of  the  respondent \ncarrier called him to inform him that his workers’ compensation claim was being denied.  \nSince  then,  he  has  returned  to  Parsioon  for  a  follow-up  visit.    The  following  exchange \ntook place on cross-examination: \nQ. Have you used [your health insurance] to go back to any doctor in \nrelation to any of these back complaints for treatment? \n \nA. I  haven’t  received  treatment  from  a  doctor  because  I’ve  just  been \non wait  for  this  [the  hearing  process]  to  happen,  for  us  to  go \nthrough the process of workman’s comp. \n \nIn turn, the following occurred on redirect: \nQ. Do you know if—if you were even to try with Medicaid, if they would \npay for your surgery? \n \n\nROGERS – H103439 \n \n13 \nA. I was afraid to ask them for it because I thought that I might get in \ntrouble  for  fraud  by  claiming  an  injury  from  a  previous  thing  and  I \nknew that there was litigation.  So I was hesitant to even ask. \n \n. . . \n \nQ. Do you want to have surgery? \n \nA. Yes. \n \n Medical  Records.    The  records  in  evidence  reflect  that  Claimant  underwent  a \nlumbar MRI on April 29, 2015, that showed moderate bilateral spondylosis at L4-  5.  He \nunderwent  another  MRI  on  February  11,  2019—the  same  day  that,  per  his  testimony, \nhe hurt his back previously at Burger King.  In that instance, the report read in pertinent \npart: \nL4-L5  has  bilateral  pars  defects.    Midline  to  right-sided  disc  extrusion \nextending  7  mm  superior  to  the  disc  space.    There  is  compression  of \nthecal  sac.    With  ligamentous  thickening  there  is  moderate  stenosis  but \nCSF  is  still  seen  surrounding  the  nerve  roots.    The  right  S1  nerve  root \nappears  more  compressed  than  the  right.    Very  similar  to  previous  CT.  \nCSF  is  also  bulging.    Anteriorly  from  the  pars  defect  on  the  left  side \nproducing  mild  effect  on  the  thecal  sac.    Is  also  some  significant  right  or \nleft foraminal stenosis.  Worse on the right. \n \n. . . \n \nIMPRESSION: \nExtruded disc herniation at L4-5 with compression of thecal sac in the right \nS1 nerve root. \n \nAnother MRI on September 12, 2019, showed: \nRedemonstration of diffuse disc bulge at L4-L5 with superimposed central \ndisc extrusion with cranial migration.  This mildly narrows the spinal canal.  \nBilateral  neural  foraminal  stenosis  at  this  level  with  contact  of  the  exiting \nbilateral L4 nerve roots. \n \nOne performed on March 11, 2020, reflected the following: \n\nROGERS – H103439 \n \n14 \nL4-L5:  There is broad-based disc bulging at this level with slight superior \nextrusion  of  the  bulging  disc,  as  well  as  facet  joint  hypertrophy.    This \nresults  in  mild  to  moderate  spinal  stenosis  to  7mm  as  well  as  bilateral \nforaminal stenosis. \n \n. . . \n \nIMPRESSION:    Multilevel  degenerative  changes  with  spinal  stenosis  and \nbilateral neural foraminal stenosis at L4-L5. \n \n On  July  9,  2020,  Claimant  returned  to  Dr. Parsioon and  stated  that  his  leg pain \nhad  resolved  completely.    Only  mild  lower  back  pain  (which  the  doctor  said  was \nmuscular in nature), right hip pain, and numbness in the right knee area remained.  The \ndoctor  instructed  him  to  undergo  four  weeks  of  physical  therapy  prior  to  a  final \nevaluation and release from treatment.  Thereafter, on August 26, 2020, Parsioon found \nhim to be at maximum medical improvement as of August 20, 2020, and released him.  \nIn so doing, the doctor assigned him an impairment rating of eight percent (8%) to the \nbody as a whole.  On that date, he was noted to have only “minimal low back pain.” \n Following  the  incident  at  issue,  on  April  8,  2021,  Claimant  presented  to  St. \nBernard Medical Center.  The report of his emergency room visit shows that he related \nto  treating  personnel  that  he  had  been “at  work  and  felt  a  sudden  pop  in  his  low  back     \n. . . [w]hich caused him to lose control of his bladder.  He had sharp pain that radiated \ndown the right lower extremity.”  As part of this visit, he underwent yet another lumbar \nMRI.  The report\n2\n thereof reads in pertinent part: \n \n \n2\nThis report has handwritten notations on it.  The Prehearing Order includes the \nfollowing language: \n \n[T]he   parties   are   advised   that   exhibits   should   not   be   highlighted, \nunderlined,  or  contain  any  marginal  notations.    If  exhibits  are  altered  in \n\nROGERS – H103439 \n \n15 \nAt L4-L5, broad-based diffuse disc bulge with more focal right paracentral \nand foraminal disc herniation.  There is additional central disc component \nwith some superior migration of disc material.  There is severe narrowing \nof the right lateral recess and right neural foramina.  There is moderate left \nneural foraminal narrowing. \n \n. . . \n \nImpression: \n1. Broad-based  disc  bulge  with  more  focal  right  paracentral  and \nforaminal disc herniation at L4-5.  There is severe narrowing of the \nright  lateral  recess  and  right  neural  foramina.    There  is  moderate \nleft neural foraminal narrowing. \n \nThe   emergency   room   physician,   Dr.   Jonathan   Frego,   consulted   with   Dr.   Harry \nFriedman,  who  was  the  neurosurgeon  on-call  for  Dr.  Parsioon,  and  recommended  a \nsteroid dose pak and pain control as needed. \n On  April  22,  2021,  Claimant  went  to  Dr.  Parsioon,  as  had  been  recommended \nduring  the  aforementioned  emergency  room  visit.    Parsioon’s  report  reads  in  pertinent \npart: \nHISTORY  OF  PRESENT  ILLNESS:  This  is  a  45-year-old  gentleman \nwhom I initially saw on February 27, 2020, for evaluation of back and right \nlower  extremity  pain  after  an  on-the-job  injury  on  February  11,  2019.    I \nsent him for an MRI of the lumbar spine which showed a lateral ruptured \ndisc   at   L4/L5.      He   has   since   undergone   a   right   lateral   L4/L5 \nmicrodiscectomy  on  May  26,  2020.    He  did  very  well  after  surgery  with \nresolution of his symptoms and weakness.  He was released to work with \nregular  duties  at  MMI  and  an  8%  PPI  rating  based  on American  Medical \n \nany  fashion,  it  will  be  necessary  to  substitute  those  pages  before  the \ntranscript  is  prepared.    Failure  to  comply  with  the  above  directives  may \nresult  in  sanctions,  including  the  exclusion  of  the  medical  records  from \nevidence. \n \nThe  notations  were  not  discovered  until  after  the  record  was  closed.    There  is  no  way \nfor me to determine who made them.  I am not permitted to engage in speculation and \nconjecture.  See Dena Construction Co. v. Herndon, 264 Ark. 791, 796, 575 S.W.2d 155 \n(1979).  For these reasons, I am giving no weight whatsoever to the notations. \n\nROGERS – H103439 \n \n16 \nAssociation Guides to Evaluation of Permanent Impairment, Fourth Edition \non August 8, 2020. \n \nHe has been referred back to me for evaluation of a new on-the-job injury \non April 8, 2021, of the back and right lower extremity.  He states that o n \nthe date of injury he was making sandwiches and turned sideways to pick \nsomething  up  and  felt  a  pop  in  his  back.    He  started  having  a  burning \nsensation  in  the  lumbar  area.    He  went  to  the  office  and  noticed  he  had \nwet  his  pants  with  urinary  incontinence  without  noticing  it;  however,  he \nstates that was just one episode and has not happened since then. \n \nHe  went  to  the  Emergency  Room  in  Jonesboro,  Arkansas  that  day.    He \nwas  evaluated  with  an  MRI  of  the  lumbar  spine  and  told  him  he  has  two \nruptured   discs.      Since   there   was  no   neurosurgeon   on   call   for   the \nEmergency  Room  in  Jonesboro  and  I  was  out  of  town  they  apparently \ntalked to Dr. Harry Friedman, who told them to start him on steroids, give \nhim  medication,  and  make  an  appointment  for  him  to  come  and  see me.  \nThree days later after the injury, he went back to work with limited duties \nand his boss let him work for two days, but then said that he needed to go \nhome till he sees me since his work restrictions were only for those days.  \nHe has not worked since those few days of restricted-duty work. \n \nOn  today’s  visit,  he  is  here  with  his  wife.    He  still  has  back  pain  and  the \nburning  sensation  in  the  lumbar  area.    The  pain  [g]oes  down  his  right \nlower  extremity  to  the  top  of  his  right  foot.    He  states  the  right  lower \nextremity  feels  weak  to  him.    He  states  his  pain  is  severe  and  increases \nwith  activity and  long periods of  sitting  and standing.    The  only  thing  that \nrelieves  the  pain  and  makes  it  better  is  when  he  lays  down  in  bed.    He \nalso complains of some numbness in  the lateral aspect of the right thigh, \nand right lower extremity.  He says that the area over the lateral aspect of \nthe  right  thigh  from  the  hip  to  the  mid  thigh  itches  all  the  time.    He  also \ngets  spasms  in  his  lumbar  spine.    He  says  his  MRI  of  the  lumbar  spine \nwas done with-and-without contrast. \n \nParsioon  noted  that  he  did  not  have  a  CD  of  the  MRI  that  had  been  performed  after \nClaimant’s  alleged  new  back  injury,  nor  the  records  of  his  April  8,  2021,  visit  to  the \nemergency   room.      He   performed   x-rays,   which   showed,   inter   alia,   grade   1 \nspondylolisthesis at L4-5.  The doctor opined that this particular condition was “[c]hronic \n\nROGERS – H103439 \n \n17 \nand  pre-existing,  and  instructed  Claimant  to  obtain  the  CD  of  his  MRI  along  with  the \nemergency room records. \n When  he  went  back  to  Dr.  Parsioon  on  April  29,  2021,  Claimant  brought  the \naforementioned items.  The report of this visit reads in pertinent part: \nREVIEW  OF  RECORDS:  I  reviewed  this  patient’s  old  records  that  were \navailable to me today. \n \nREVIEW OF STUDIES:  I reviewed an MRI of the lumbar spine with-and-\nwithout   contrast   dated   April   23,   2021,   which   showed   postoperative \nchanges  of  the  right  L4-L5  lateral  discectomy  with  spondylosis,  bilateral \npars defect, and grade 1 spondylolisthesis at this level.  The review seems \nto show that there is a new ruptured disc over the right paracentral area at \nL4-L5 level with moderate foraminal stenosis. \n \nI  had  the  previous  CDs  of  his  multiple  lumbar  MRIs  in  the  office  and  I \nreviewed all of them today:  [Emphasis in original] \n \nI  reviewed  an  MRI  of  the  lumbar  spine  dated  February  11,  2019,  which \nwas  before  surgery.    This  showed  a  small  right  paracentral  disc  bulge  at \nL4-L5, a lateral ruptured disc on the right side at L4-L5, and spondylosis. \n \nI  reviewed  an  MRI  of  the  lumbar  spine  March  11,  2020,  which  showed  a \nsmall central L4-L5 disc bulge and right lateral L4-L5 ruptured disc without \nany paracentral component to the disc rupture or disc bulge. \n \nIMPRESSION:  1.    Comparing  those  two  MRIs  with  this  recent  MRI  of \nApril  23,  2021,  it  definitely  looks  like  he  has  a  right  L4-L5  paracentral \nruptured  disc.    This  has  caused  foraminal  stenosis  for  him.   In  my \nopinion, this is a new problem.  [Emphasis added] \n \n A  May  13,  2021,  electrodiagnostic  study  showed  no  evidence  of  right  lumbo- \nsacral  radiculopathy.   Claimant  next underwent  a  lumbar myelogram, along with  a  CT.  \nThe findings thereof included: \nRight  L4  pars  defect  .  .  .  L4-5  spinal  canal  stenosis.    Spinal  instability  at \nthe L4-5 level with increase in L4 spondylolisthesis on L5 between flexion \nand   extension   views   of   more   than   3   mm   in   upright   position.      L4 \nanterolisthesis  of  up  to  9  mm  with  patient  in  upright  position  with  flexion, \n\nROGERS – H103439 \n \n18 \ncompared to supine position . . . [r]ight lateral of posterolateral disc bulge \nat  L4-5.    Soft  tissue  opacity  within  the  right  L4-5  neuroforamen  that  may \nrepresent  disc  material  versus  epidural  scar.    Lumbar  spine  MRI  without \nand with contrast enhancement may add further information. \n \nWhen Parsioon saw Claimant once more on May 24, 2021, the doctor wrote: \nI  reviewed  a  CT  myelogram  of  the  lumbar  spine  with  a  mixed  injection \naccording to the report by the radiologist who performed it.  I reviewed the \nCT myelogram and the report, which showed a pars interarticularis defect \nat  L4-L5  level.    There  was  also  spondylolisthesis  at  L4-L5  level  and  is \napparently  with  some  motion  when  they  did  the  study  in  supine  position \nwith  movement.   There  was  some  vacuum  disc  phenomenon  at  L4-L5 \nlevel.    The  previous  surgery  on  the  right  with  postoperative  changes  was \nseen  and  also  the  partial  facetectomy.   Again,  this  in  my  opinion,  just \nlike  on  his  MRI,  was  suggested  that  there  might  be  a  right  L4-L5, \nparacentral  and  foraminal  disc  at  this  level  which  may  be  new.  \nHowever,   because   of   the   mixed   injection,   previous   scar   tissue \nformation, and spondylolisthesis that he has at L4-L5 level, it is very \ndifficult to 100% say that he has this.  [Emphasis added] \n \n Claimant again saw Dr. Parsioon on July 12, 2020.  The doctor wrote that the CT \nmyelogram “showed the question of another ruptured disc at the same area on the right \nat L4-L5 level,” and that the pars defect  and the spondylosis that were found are “old.”  \nHe added: \n[Claimant]  says  physical  therapy  helped  some  of  his  pain,  but  when  he \nwalks, he gets back pain which radiates down to the right lower extremity \nand he has to stop walking.  He also complains of some jerky movements \nin the muscles of the lateral aspect of the right thigh, which is also present \non examination today.   I believe these are fasciculations.   The atrophy of \nthe right leg, which improved almost back to normal after the first surgery, \nhas worsened again, and he has started losing muscle in the right leg and \nis weak in the right thigh . . . [h]e also complains of numbness in the lateral \naspect of the right hip all the way down laterally to the right ankle area. \n \nParsioon informed Claimant that an epidural block would not help his pain; and that due \nto  his  failure  to  respond  to  conservative  treatment  and  to  the  nature  of  his  previous \n\nROGERS – H103439 \n \n19 \nsurgery, he was now “a candidate for an L4-L5 decompression and fusion.”  The doctor \nrecommended that he see Dr. Brophy for this. \n Brophy  saw  Claimant  on  August  19,  2021.    The  report  of  that  visit  reads  in \npertinent part: \nNeurodiagnostic Assessment \nLumbar MRI, with, and without contrast, dated 8 April, 2021 demonstrates \na right paracentral L4-5 HNP extending slightly superior to the disc space.  \nThe  previous  far  lateral  disc  herniation  has  been  removed.    There  is  a \npossible   L4   pars   defect.      Other   levels   demonstrate   no   significant \nabnormalities.    The  MRI  does  not  demonstrate  definite  evidence  of \nspondylolisthesis. \n \n. . . \n \nImpression: \nChronic back and right lower extremity radicular pain secondary to an L4-5 \nGrade 1 spondylolisthesis with L4 pars defects and a right paracentral L4-\n5 HNP. \n \nPlan: \nThe results of the radiographic studies and clinical situation were reviewed \nin  detail  with  Mr.  Rogers  and  his  family.    We  discussed  the  option  of \ncontinued  activity  modification,  anti-inflammatories  and  consideration  of \nalternative  employment  versus  a  lumbar  epidural  steroid  injection  on  the \nright at L4-5.  Based on the severity of his pain and his desire to return to \nwork  at  full  activities  as  soon  as  possible,  he  is  requesting  surgical \nintervention.    The  L4-5  posterior  lumbar  interbody  fusion  procedure  was \ndescribed . . . [w]ith regard to causation, in my opinion, the etiology of \nhis  disc  herniation,  and ongoing  back  pain  is  related  to  his  pre-\nexisting L4 pars defect and Grade 1 L4-5 spondylolisthesis which is \nnot related to a work injury or work activities.  In my opinion, further \ntreatment would be more appropriately handled through his personal \ninsurance.  [Emphasis added] \n \n Claimant’s  counsel  wrote  Dr.  Parsioon  on  October  19,  2022,  requesting  that  he \nrespond  to  the  opinion  of  Dr.  Brophy  highlighted  above.    That  reply,  which  Parsioon \nauthored on November 28, 2022, states in pertinent part: \n\nROGERS – H103439 \n \n20 \nThis is written in response to your letter of October 19, 2022, regarding the \nabove–mentioned  individual  who  is  a  patient  of  mine.    I  reviewed  your \nletter  and  also  reviewed  all  of  his  medical  records  to  be  able  to  answer \nyour  questions  .  .  .  I  also  was  not  upset  about  Dr.  Brophy’s  recommen- \ndation,  as  you  know,  doctors  are  entitled  to  their  medical  opinion.    I  was \nbasically  disappointed  that  he  did  not  feel  that  this  was  coming  from  his \nwork  injury  but,  because in  my  opinion,  this  new  ruptured  disc  in  his \nback is definitely related to his new  date of  injury of April 8, 2021.  I \nstill disagree with Dr. Brophy’s opinion that this problem is not work \nrelated  to  his  new  injury,  which  is  evident  on  the  MRI  after  the  new \ninjury.  I still believe that this gentleman needs to have the recommended \ndiscectomy and fusion.  [Emphasis added] \n \nDiscussion.    In  this  case,  the  evidence  is  clear  that  Claimant  has  objective \nfindings  of  an  injury  to  his  lower  back.    These  findings  come  from an  MRI  that  took \nplace\n3\n  on  the  alleged  date  of  injury,  April  8, 2021, and  reflect  that  Claimant  suffered a \nright paracentral herniation at L4-5. \n As  for  whether this  lumbar  condition  arose  out  of  and  in  the  course  of  his \nemployment at Respondent Burger King, and was caused by a  specific incident that is \nidentifiable by time and place of occurrence, the evidence shows that before the April 8, \n2021,   incident,   Claimant   was   able   to   perform   the   physical   requirements   of   his \nmanagerial  job  without  any  problems.    Mrs.  Rogers  corroborated  Claimant’s  testimony \non  this  matter.    She  added  that  she  did  not  observe  him  to  be  having any  physical \nproblems when he came home from work the night before the incident in question. \n However, this changed the afternoon of April 8, 2021.  Around 1:40 to 1:45 p.m., \nhe began working the sandwich board.  While performing the duties at this workstation, \n \n \n3\nAs set out above, Dr. Parsioon twice stated in his April 29, 2021, report that this \nMRI  took  place  on April  23, 2021.    But  no MRI  report bearing this  date  is  in evidence; \nand  Parsioon  does  not  reference  the  April  8  report  despite  his  notation that  he  had \n\nROGERS – H103439 \n \n21 \nhe pivoted  and  reached  to  retrieve  a  bun  that  had  dropped out of the toaster  when  he \nfelt his back “pop.”  Once the sandwich maker whom he was covering returned to work, \nClaimant went to his office and called his supervisor to inform her of the injury.  He had \nhis  wife  pick  him  up  at  the  restaurant  and  drive  him  to  the  hospital.    Mrs.  Rogers \ncorroborated  this.   The  records  of  the  emergency  room  visit  are  in  evidence  and  have \nbeen discussed above.  I credit the testimony of these witnesses. \n A  causal  relationship  may  be  established  between  an  employment-related \nincident  and  a  subsequent  physical  injury  based  on  the  evidence  that  the  injury \nmanifested  itself  within  a  reasonable  period  of  time  following the  incident,  so  that  the \ninjury  is  logically  attributable  to  the incident,  where  there  is  no  other  reasonable \nexplanation  for  the  injury. Hall  v.  Pittman  Construction Co.,  234  Ark.  104,  357  S.W.2d \n263 (1962).  That is certainly the case here. \n Respondents  have  sought  to  highlight  the  opinion of  one  of  Claimant’s  treating \nphysicians concerning the cause of Claimant’s disc herniation.  Dr. Brophy wrote:  “[I]n \nmy  opinion,  the  etiology  of  his  disc  herniation,  and ongoing  back  pain  is  related  to  his \npre-existing L4 pars defect and Grade 1 L4-5 spondylolisthesis which is not related to a \nwork injury or work activities.”  Taking the opposite tack was Dr. Parsioon, who  opined \nnot only was “the new ruptured disc . . .  definitely related to [the] new date of injury of \nApril 8, 2021,” but that he disagrees with Brophy regarding this. \n \nClaimant’s radiological reports.  Thus, I have concluded that the references are a mere \nscrivener’s error, and that he was in fact referring to the April 8 report. \n\nROGERS – H103439 \n \n22 \n In Cooper v. Textron, 2005 AR Wrk. Comp. LEXIS 32, Claim No. F213354 (Full \nCommission Opinion filed February 14, 2005), the Commission addressed the standard \nwhen examining medical opinions concerning causation: \nMedical  evidence  is  not  ordinarily  required  to  prove  causation,  i.e.,  a \nconnection between an injury and the claimant's employment, Wal-Mart v. \nVan  Wagner,  337  Ark.  443,  990  S.W.2d  522  (1999),  but  if  a  medical \nopinion  is  offered  on  causation,  the  opinion  must  be  stated  within  a \nreasonable  degree  of  medical  certainty.    This  medical  opinion  must  do \nmore  than  state  that  the  causal  relationship  between  the  work  and  the \ninjury  is  a  possibility.    Doctors’  medical  opinions  need  not  be  absolute.  \nThe  Supreme  Court  has  never  required  that  a  doctor  be  absolute  in an \nopinion  or  that  the  magic  words  “within  a  reasonable  degree  of  medical \ncertainty”  even  be  used  by  the  doctor;  rather,  the  Supreme  Court  has \nsimply  held  that  the  medical  opinion  be  more  than  speculation;  if  the \ndoctor  renders  an  opinion  about  causation  with  language  that  goes \nbeyond  possibilities  and  establishes  that  work  was  the  reasonable  cause \nof  the  injury,  this  evidence  should  pass  muster.   See,  Freeman  v.  Con-\nAgra  Frozen  Foods,  344  Ark.  296,  40  S.W.3d  760  (2001).    However, \nwhere  the  only  evidence  of  a  causal  connection  is  a  speculative  and \nindefinite medical opinion, it is insufficient to meet the claimant's burden of \nproving causation.  Crudup v. Regal Ware, Inc., 341, Ark. 804, 20 S.W.3d \n900  (2000); KII  Construction  Company  v.  Crabtree,  78  Ark.  App.  222,  79 \nS.W.3d 414 (2002). \n \n Based  on  my  review  of  the  totality  of  the  evidence,  I  credit  the  opinion  of  Dr. \nParsioon over that of Brophy.  As the medical records reflect, Brophy saw Claimant on \nonly  one occasion:    August  12,  2021.    Parsioon,  on  the  other  hand,  has been  treating \nClaimant for years—and has performed spinal surgery on him.  Moreover, the opinion of \nDr. Parsioon that the work-related incident of April 8, 2021, was the cause of Claimant’s \nherniation  comports  with  the  balance  of  the  evidence  as  discussed supra.    The \nCommission  is  authorized  to  accept  or  reject  a  medical  opinion  and  is  authorized  to \ndetermine its medical soundness and probative value.  Poulan Weed Eater v. Marshall, \n\nROGERS – H103439 \n \n23 \n79  Ark.  App.  129,  84  S.W.3d  878  (2002); Green  Bay  Packing  v.  Bartlett,  67  Ark.  App. \n332, 999 S.W.2d 692 (1999). \n In making this finding, I am well aware of Claimant’s previous back problems.  As \nRespondents pointed out and Claimant acknowledged, the pain that he experienced on \nApril 8, 2021, was in the same area as his 2019 injury—pain that disappeared following \nhis  microdiscectomy.    But  I  note  that  an  employer  under  the  Arkansas  Workers’ \nCompensation  Act  takes  an  employee  as  the  employer  finds  him.    Employment \ncircumstances  that  aggravate  pre-existing  conditions  are  compensable.   Nashville \nLivestock  Comm.  v.  Cox,  302  Ark.  69,  787  S.W.2d  64  (1990).    A  pre-existing  infirmity \ndoes  not  disqualify  a  claim  if  the  employment  aggravated,  accelerated,  or  combined \nwith the infirmity to produce the disability for which compensation is sought.  St. Vincent \nMed. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).  “An aggravation, being a \nnew injury with an independent cause, must  meet the requirements for a compensable \ninjury.”   Crudup  v.  Regal  Ware,  Inc.,  341  Ark.  804,  20  S.W.3d  900  (2000);   Ford  v. \nChemipulp  Process,  Inc.,  63  Ark.  App.  260,  977  S.W.2d  5  (1998).    This  includes  the \nprerequisite  that  the  alleged  injury  be  shown  by  medical  evidence  supported  by \nobjective  findings.   See  Heritage  Baptist  Temple  v.  Robison,  82  Ark.  App.  460,  120 \nS.W.3d 150 (2003).  Again, objective findings of a new lumbar injury are readily present \nhere. \n In  summary,  the  evidence  shows  that  Claimant  sustained  an  injury  to  his  lower \nback  that  arose  out  of  and  in  the  course  of  his  employment  with  Respondent  Burger \nKing.    The  injury  aggravated,  accelerated,  or  combined  with  Claimant’s  pre-existing \n\nROGERS – H103439 \n \n24 \nlumbar spine condition to produce the disability for which compensation is being sought.  \nThe  injury  caused  internal  or  external  harm  to  Claimant’s  body  that  required  medical \nservices.  The injury has been established by medical evidence supported by objective \nfindings.  Finally, the injury was caused by a specific incident and is identifiable by time \nand  place  of  occurrence:    his  work  at  the  sandwich  board  station  on  the  afternoon  of \nApril 8, 2021.  Claimant has, consequently, proven by a preponderance of the evidence \nthat he suffered a compensable lower back injury by specific incident. \nB. Medical Treatment \n Introduction.   Claimant  has  alleged  that  he  is  entitled  to  reasonable  and \nnecessary   medical   treatment   in   connection   with   his   alleged lower   back   injury.  \nRespondents disagree. \n Standards.    Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012) states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \n\nROGERS – H103439 \n \n25 \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Discussion.  I find that Claimant has proven by a preponderance of the evidence \nthat  he  is  entitled  to  reasonable  and  necessary  medical  treatment  of  his  compensable \nlower  back injury,  including  the  proposed  lumbar fusion  surgery  and  related  treatment.  \nIn  so  doing,  I  credit  Claimant’s  testimony  that  he  wants  to  have  this  operation.  \nMoreover, I have reviewed his treatment records that are in evidence, and I find that he \nhas  proven  by  a  preponderance  of  the  evidence  that  all  of  the  treatment  of  his \ncompensable  lower  back  injury  that  is  in  evidence—on  and  after  April  8,  2021—was \nreasonable and necessary. \n\nROGERS – H103439 \n \n26 \nC. Temporary Total Disability \n Introduction.    Claimant  has  also  alleged  that  he  is  entitled  to  temporary  total \ndisability benefits from the date last paid to a date yet to be determined.  Respondents \ndisagree with this. \n Standards.    The  compensable  injury  to  Claimant’s  lower  back  is  unscheduled.  \nSee Ark. Code Ann. § 11-9-521 (Repl. 2012).  An employee who suffers a compensable \nunscheduled  injury  is  entitled  to  temporary  total  disability  compensation  for  that  period \nwithin the healing period in which he has suffered a total incapacity to earn wages.  Ark. \nState  Hwy.  &  Transp. Dept.  v.  Breshears,  272  Ark. 244,  613  S.W.2d  392  (1981).    The \nhealing  period  ends  when  the  underlying  condition  causing  the  disability has  become \nstable  and  nothing  further  in  the  way  of  treatment  will  improve  that  condition.   Mad \nButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  Also, a claimant must \ndemonstrate that the disability lasted more than seven days.  Id. § 11-9-501(a)(1). \n Evidence/Discussion.    During  the  hearing, Claimant  testified  that  Respondents \npaid him temporary total disability benefits until around the time Dr. Brophy opined that \nClaimant’s L4-5 herniation and back pain were not work-related.  That opinion  led to a \nrepresentative  from  the  respondent  carrier  calling  him  to  inform  him  that  his workers’ \ncompensation  benefits  would  cease.    The  payment  to  him  of  temporary  total disability \nbenefits did end at that point. \n The  evidence  establishes  that  Claimant  at  that  point  was  still  in  his  healing \nperiod—and  that  he  has  remained  so.    Neither  Dr.  Brophy  nor  Dr.  Parsioon—or  any \nother  provider,  for  that  matter—has  released  him  from  treatment  since  that  time.    The \n\nROGERS – H103439 \n \n27 \nlast  treatment  he  underwent  in  connection  with  his  back  was  with  Parsioon  on \nSeptember 16, 2021.  The doctor wrote: \nFrom my standpoint, there is nothing else that I can do for him surgically, \nbecause  again, I  do not  perform  this  type of  surgical  procedure.   He  had \nbeen  taken  off  work  by  me  since  April  22,  2021,  and I  believe  that  he \nneeds to stay off work due to the severity of his pain and condition. \n \n(Emphasis  added)  As  I  did  regarding  the matter of  causation  (see supra),   I  credit  this \nopinion by Dr. Parsioon. \n In  making  this  finding,  I  note  that Claimant’s  credible  testimony  on  this  point \ncorroborates  what  Parsioon  wrote  in  the  above  report.    According  to  Claimant,  he  has \nnot  worked  anywhere  during  the  period  at  issue.    Ms.  Rogers  confirmed  this.   The \nfollowing exchange took place during Claimant’s direct examination: \nQ. What’s keeping you from working? \n \nA. Pain. \n \nQ. Specifically? \n \nA. The more I move, the more I hurt.  When I bend, it hurts.  When I \ntry to lift anything, it hurts.  Even when my daughter sits on my lap, I \nhave  to  lean back  against  the  couch  for  her  to  lean  against  me \nbecause I can’t support her weight.  I have a lot of pain in my lower \nback.    I  have  numbness  down  my  right  leg  and  the  more  I  move \nand the more I do, the worse that becomes. \n \nQ. Can you sit in one position for a long period of time? \n \nA. No,  sir.    In  fact,  right now,  it  hurts  right  now  just  to  sit  in  this  chair \nbecause  I’ve  been  sitting  there  and  sitting  her  and  not  moving.    I \nhave—even when I go to church, I have to get up and walk during \nthe sermon. \n \nQ. Do you still want the surgery [the L4-5 posterior interbody fusion]? \n \nA. Yes, sir. \n\nROGERS – H103439 \n \n28 \n \n. . . \n \nQ. Are  you  able  to  do  the  household  chores  that  you  were  doing \nbefore this incident on April the 8\nth\n? \n \nA. We  have  a  riding  lawnmower  now,  and  I  try  to  use  the riding \nlawnmower.  Before, I used a push mower and a weed eater and all \nthose things.  I can sometimes sit in a chair next to the dishwasher \nand take things from the—from the table, but I can’t like lift over my \nhead real high with any kind of weight at all.  My arms start shaking.  \nI have difficulty doing pretty much everything. \n \nHis  wife  corroborated  this  testimony.    He  added  that  his  back  pain  keeps  him  from \nsleeping well.  This discomfort has led him to ration the doses of Tramadol that he has \nleft, saving them for when his pain is especially severe.  Otherwise, he takes four to five \nIbuprofen tablets at a time. \n Claimant has a bachelor's degree in social science.  His original intention was to \nbecome a teacher and a coach after college.  But his education certificate has expired.  \nHe  worked  for  Burger  King  in  various  capacities.    This  included  being  a  traveling \nmanager.  In this position, he went to franchises owned by the respondent employer in \nArkansas, Illinois, Kentucky, and Missouri, training assistant managers and employees.  \nLater, he became a district manager and then a store manager.  It was while serving in \nthis latter job that he hurt his back in April 2021.  Even when Claimant was working as a \ndistrict manager, he had extensive physical duties.  He related: \nThere was a lot of overseeing.  It also came—we had to clean.  We had to \nscrub walls.  We had to do dishes.  We were working managers, even the \ndistrict manager.  There was many days where I would be on boards  or I \nwould  be  on  a  headset.    You  know,  the  store  manager  would  have \ninterviews, so I would run her store while she was doing interviews. \n \n\nROGERS – H103439 \n \n29 \nAs for the store manager position, he testified: \nWell,  the  store  managers  are  responsible  for  the  entire  property,  from \nboundary  to  boundary,  on  the  operations,  everything:    hiring,  firing, \nscheduling,  money,  safety  procedures,  food  safety,  taking  temperatures, \nordering  trucks,  cleanliness.    That  was  huge.    Any  time  somebody  didn’t \ndo a job, it was up to me to get it done.  If we didn’t have a porter, I had to \nfind a porter.  If we  had somebody not show up for truck, I had to unload \ntrucks.    You  know,  it  was  just  whatever  was  required  .  .  .  [i]t  was  the \nexpectation of ownership that we would do whatever it took to make sure \nour stores were successful . . . I had to work boards, making sandwiches.  \nI  had  to  work  the  broiler,  cooking  food.    I  had  to  bring  stock  in  from the \nfreezer  into  the  kitchen  to  the  smaller  freezers,  boxes  of  Whoppers,  you \nknow, boxes of French fries, frozen product.  Those ranged in weight from, \nyou know, two pounds to 40 pounds, depending on what the product was.  \nI had to scrub floors.  I had to get on ladders and change lightbulbs.  I had \nto pressure wash outside.  I had to take the trash out.  If there was a job to \nbe done in that restaurant, I did it. \n \n The  physical  requirements  of  being  a  store  manager  at  Burger  King  are  best \nexemplified  by  the  fact  that  Claimant  hurt  his  back  while  working  at  the  sandwich \nboard—not while doing paperwork. \n A claimant who has been released to light duty work but has not returned to work \nmay  be  entitled  to  temporary  total  disability  benefits  where  insufficient  evidence  exists \nthat  the  claimant  has  the  capacity  to  earn  the  same  or  any  part  of  the  wages  he  was \nreceiving  at  the  time of  the  injury.   Ark. State  Hwy.  &  Transp.  Dept.  v.  Breshears,  272 \nArk. 244, 613 S.W.2d 392 (1981); Sanyo Mfg. Corp. v. Leisure, 12 Ark.  App. 274, 675 \nS.W.2d 841 (1984).  In Farmers Coop.  v. Biles,  77 Ark. App. 1, 69 S.W.3d 899 (2002), \nthe  Arkansas  Court of  Appeals wrote:  “If,  during  the  period  while  the  body  is  healing, \nthe employee is unable to perform remunerative labor with reasonable consistency and \nwithout  pain  and  discomfort,  his  temporary  disability  is  deemed  total.”  The  medical \nevidence  recounted  above  shows  that  this  was the  situation  here.    During  the  time \n\nROGERS – H103439 \n \n30 \nperiod  at  issue,  Claimant  suffered  from  a  total  incapacity  to  earn  wages.    This  is \nongoing.  Consequently, he has proven by a preponderance of the evidence that he is \nentitled  to  additional  temporary  total  disability  benefits  from  the  date  last  paid  until  a \ndate yet to be determined. \nD. Controversion \n Introduction.    Claimant  has  asserted  that  he  is  entitled  to  a  controverted \nattorney’s fee in this matter. \n Standard.    One  of  the  purposes  of  the  attorney's  fee  statute  is  to  put  the \neconomic  burden  of  litigation  on  the  party  who  makes  litigation  necessary.  Brass  v. \nWeller,  23  Ark.  App.  193,  745  S.W.2d  647  (1998).    In this  case,  the  fee  would  be  25 \npercent  (25%)  of  any  indemnity  benefits  awarded  herein,  one-half  of  which  would  be \npaid by Claimant and one-half to be paid by Respondents in accordance with See Ark. \nCode  Ann.  §  11-9-715  (Repl.  2012).   See Death  &  Permanent  Total  Disability  Trust \nFund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents  have \ncontroverted Claimant’s  entitlement  to  temporary  total  disability  benefits.    Thus,  the \nevidence preponderates that his counsel, the Hon. Daniel E. Wren, is entitled to the fee \nas set out above. \nE. Offset \n As  the  parties  have  stipulated—and  I  have  accepted—were  Claimant  to  prove \nthat  he is  entitled  to  indemnity  benefits,  Respondents  would  be  entitled  to  an  offset \nunder Ark. Code Ann. § 11-9-411 (Repl. 2012) concerning long-term disability benefits \n\nROGERS – H103439 \n \n31 \nthat  were  paid to him in  connection  with  his alleged  lower  back  injury  of April  8, 2021.  \nHe has proven not only that this alleged injury was compensable, but that he is entitled \nto temporary total disability benefits in connection therewith.  Thus, Respondents have \nshown that they are entitled to the offset\n4\n as outlined above. \nCONCLUSION AND AWARD \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance with  the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid \nin a lump sum without discount, and this award shall earn interest at the legal rate until \npaid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2012).   See Couch  v.  First  State \nBank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  a  25  percent  (25%)  attorney’s  fee awarded \nherein,  one-half  of  which  is  to  be  paid  by  Claimant  and  one-half  to be  paid  by \nRespondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge \n \n \n4\nIn Brigman v. City of West Memphis, 2013 Ark. App. 66, 2013 Ark. App. LEXIS \n73,  the  Arkansas  Court  of  Appeals  held  that  in  situations  where  both  the respondent \nemployer and the Claimant paid a portion of the premium of the policy in question, the \nrespondent employer is entitled to an offset against indemnity benefits owed by them to \nthe extent that they contributed toward the premium.","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H103439 JAMES ROGERS, EMPLOYEE CLAIMANT MIDAMERICA HOTELS CORP., d/b/a BURGER KING RESTAURANTS, EMPLOYER RESPONDENT PREVISOR INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 15, 2023 Hearing before Administrative Law Judge O. Milton Fine II on December 16, 20...","fetched_at":"2026-05-19T23:09:27.968Z","links":{"html":"/opinions/alj-H103439-2023-03-15","pdf":"https://labor.arkansas.gov/wp-content/uploads/Rogers_James_H103439_20230315.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}