{"id":"alj-H104448-2023-07-11","awcc_number":"H104448","decision_date":"2023-07-11","opinion_type":"alj","claimant_name":"Levi Yousey","employer_name":"Blackhawk Auto & Tire","title":"YOUSEY VS. BLACKHAWK AUTO & TIRE AWCC# H104448 JULY 11, 2023","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["fracture","wrist","repetitive","back","cervical","carpal tunnel","neck"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/YOUSEY_LEVI_H104448_20230711.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"YOUSEY_LEVI_H104448_20230711.pdf","text_length":30391,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H104448 \n \nLEVI YOUSEY, Employee CLAIMANT \n \nBLACKHAWK AUTO & TIRE, Employer RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY, Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 11, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On April 11, 2023, the above captioned claim came on for a hearing at Springdale, \nArkansas. A pre-hearing conference was conducted on February 6, 2023, and a Pre-hearing \nOrder was filed on February 7, 2023. A copy of the Pre-hearing Order has been marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship between employee-employer-carrier existed between the parties on \nMay 14, 2021. \n 3. The claimant sustained a compensable injury to his right upper extremity on May 14, \n2021. \n 4. The claimant’s weekly compensation rates will be determined at a later date. \n\nYousey – H104448 \n \n-2- \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant is entitled to surgery for his compensable right upper extremity \ninjury in the form of surgery as recommended by Dr. James Kelly. \n Claimant’s contentions are: \n“Claimant contends he is entitled to surgery for his right upper \nextremity as recommended by Dr. Kelly. Claimant reserves all \nother issues.” \n \n Respondents’ contentions are: \n \n“Respondents contend that they accepted the claim as compensable \nand have paid all applicable medical and indemnity benefits. The \ntreatment subsequently suggested by claimant’s change of \nphysician, Dr. James Kelly’s evaluation is not reasonable, \nnecessary or related to the work injury.” \n \n The claimant in this matter is a 26-year-old male who sustained a compensable injury to \nhis right upper extremity on May 14, 2021. At the time of his injury the claimant was employed \nby the respondent as a “lube tech.” His job required him to perform automobile oil changes and \nchange and balance tires. The claimant testified that the work required heavy lifting and use of \nhis hands. The claimant gave direct examination testimony about his abilities prior to the \naccident and the incident itself as follows: \nQ Did you have any trouble doing that work prior to your \naccident? \n \nA No. \n \nQ Did you have any type of weakness in your right arm at all? \n \nA No. \n \nQ And what happened on May 14\nth\n of 2021? \n \nA I was going to balance a tire and as I was picking it up to \nput it on the tire machine, it exploded in my hands. \n\nYousey – H104448 \n \n-3- \n \nQ And what injuries did you sustain? \n \nA I broke my radius. It burned my arm and broke my pinky, \nas well. And just multiple cuts and bruises. \n \nQ Okay. Now, did you go to the emergency room? \n \nA Yes. \n \nQ Which hospital? \n \nA Northwest in Bentonville. \n \nQ And how did you get there? \n \nA Ambulance. \n \n The claimant eventually began treatment for his compensable right upper extremity \ninjury with Dr. Jeff Johnson. Dr. Johnson performed surgery on the claimant on May 25, 2021, at \nPrecision Surgical Center of Northwest Arkansas. Following is a portion of Dr. Johnson’s \noperative report: \nPREOPERATIVE DIAGNOSES: \n1. Injury caused by exploding tyre [sic]. \n2. Right radial shaft fracture, closed. \n3. Right small finger proximal phalanx fracture, closed. \n \nPOSTOPERATIVE DIAGNOSES: \n1. Injury caused by exploding tyre [sic]. \n2. Right radial shaft fracture, closed. \n3. Right small finger proximal phalanx fracture, closed. \n \nPROCEDURES PERFORMED: \n1. Open reduction and internal fixation right radial shaft fracture. \n2. Closed reduction and percutaneous pin fixation right small \nfinger proximal phalanx fracture. \n \n The claimant continued to treat with Dr. Johnson after his surgical intervention. The \nclaimant was seen by Dr. Johnson on July 8, 2021. At that time, the claimant “notes that his pain \n\nYousey – H104448 \n \n-4- \nis well controlled.” Dr. Johnson ordered six weeks of physical therapy and put the claimant in a \ncock-up wrist splint. The claimant was restricted to lifting no greater than 10 lbs. with his right \nhand and no repetitive gripping with his right hand. \n The claimant was again seen by Dr. Johnson on August 19, 2021. The History of Present \nIllness portion of that report states: \nHPI \nMr. Yousey returns today for a recheck after right radial shaft \nORIF, right small finger proximal phalanx closed reduction and \npinning 5/25/2021. His injury date was 5/14/2021. \n \nHe notes that he is no longer having much in the way of pain. He \nhas been working with therapy and feels that has helped a great \ndeal. He no longer has any numbness or tingling in his arm except \nfor right over the area of the blast wound. Furthermore he notes \nthat the only stiffness he really feels is over the small finger. \n \nThe claimant was continued on physical therapy twice a week for six weeks and was told to stop \nhis splint use. The claimant’s restrictions were removed, and he was returned to full duty. \n On October 14, 2021, the claimant was again seen by Dr. Johnson. Following is a portion \nof that medical record: \nHPI \nMr. Yousey returns today for a recheck after right radial shaft \nORIF, right small finger proximal phalanx closed reduction and \npinning 5/25/2021. His injury date was 5/14/2021. He feels like \ntherapy has helped quite a lot. He does not feel particularly stiff in \nhis hand. He still has a very small area of numbness directly over \nthe blast wound. There is some tattooing in his forearm at this area \nof skin loss. \n \n*** \nAssessment/Plan \n1. Fracture of proximal phalanx of finger – Right – This appears to \nhave healed quite nicely and there is residual issue with the small \nfinger. \nS62.616A: Displaced fracture of proximal phalanx of right little \nfinger, initial encounter for closed fracture. \n\nYousey – H104448 \n \n-5- \n \n2. Fracture of shaft of radius – Right – \n1. Work restrictions: Full duty no restrictions. \n2. I believe that he has reached maximal medial improvement. \nBased on the guides to the evaluation of permanent impairment, \nfourth edition, his impairment rating is as follows: \nUsing figure 35 page 41, he has a 1% impairment of the forearm \nrelated to a loss of pronation. \nThis is a 1% impairment of the upper extremity. Using table 3 page \n20 this is a 1% impairment of the whole person. \n \n3. I do not anticipate any long-term needs although if he were to \nhave problems with this plate I certainly would recommend that \nthat be covered as part of his initial injury. I will discharge him \nfrom clinic at this point. \nS52.321A: Displaced transverse fracture of shaft of right radius, \ninitial encounter for closed fracture. \n \n The claimant was asked on direct examination about difficulties he was having at the \ntime of his October 14, 2021, release by Dr. Johnson and if those difficulties continued as \nfollows: \nQ Did Dr. Johnson release you on October 14\nth\n of 2021? \n \nA Yes. \n \nQ And at the time of your release, were you still having any \nsymptoms or problems? \n \nA Yes. \n \nQ What kind of problems? \n \nA I was having numbness in my hand and arm. I couldn’t \nreally grip ahold of anything. I was dropping things a lot. \n \nQ Okay. Now, the numbness in your hand, tell us more about \nthat. When would that normally happen? \n \nA It mostly happens when I sleep. I though it was because I \nwas sleeping on it or something, but it just goes numb. \n \n\nYousey – H104448 \n \n-6- \nQ Did you try various things to see if the problem was \nsleeping on it? \n \nA Yea, I mean I would sleep in different positions, try not to \nlean on that arm too much, but using it less or more, either way, it \nstill made it go numb. \n \nQ And the numbness in your arm, where is that numbness? \n \nA In my forearm. \n \nQ Do you have any other symptoms? \n \nA Just my grip strength and being able to squeeze and hold on \nto things. And I have pain in there sometimes as well as in my \nforearm. \n \nQ Okay. And I think my initial question was what were your \nsymptoms when Dr. Johnson released you. Have those changed \nsince that time or are they still the same? \n \nA They are still the same. \n \n The claimant was questioned on cross-examination about the difficulties he was \nexperiencing during his treatment with Dr. Johnson as follows: \nQ Now, during the time that you were continuing to follow \nwith Dr. Johnson, there is an indication in the notes that you are no \nlonger having much in the way of pain. He has been working with \ntherapy. Feels that has helped a great deal. He no longer has \nnumbness and tingling in his arm except right over the area of the \nblast wound. Would that be the forearm? \n \nA Yes. I believe just where everything occurred, yes. \n \nQ Okay. So that is what you reported to Dr. Johnson during \nthe time you were following with him; correct? \n \nA I told him I had some – I had been having pain and \nnumbness in my hand and he never really ever mentioned anything \nabout it. I believe he gave me more physical therapy, which was \nthe last part of my physical therapy, for it. \n \n\nYousey – H104448 \n \n-7- \nQ So did the numbness and tingling with the exception of the \narea in your forearm improve or is this note not correct? \n \nA It improved. I mean I never had any numbness or anything \nwhen I was wrapped up after my surgery, really, whenever I was in \na big, giant cast directly after my surgery. But during the physical \ntherapy and everything else, that is when the numbness and \neverything started occurring. \n \nQ Okay. I am looking at an office visit and I am reading the \nnote and it was in August. So that would have been three months, \nroughly, after your surgery? \n \nA Yes. \n \nQ And at that point it indicates that you are no longer having \nany numbness or tingling in your arm with the exception of the \nblast wound area. \n \nA That is where my numbness is. I remember telling him \nabout the numbness. \n \nQ Okay. So has the numbness always been in your forearm? \n \nA Yes. \n \nQ Okay. It’s not down in your hand? \n \nA It is my hand and my forearm. \n \nQ Okay. This note doesn’t indicate any problem in your hand; \ndoes it? \n \nA No. \n \n Again, on re-direct the claimant was questioned about the difficulties he was \nexperiencing as follows: \nQ So you testified that you told Dr. Johnson about the \nsymptoms you were still having of the numbness in your forearm \nand in your hand. Do you feel that he responded to that? Did he do \nanything about that? \n \nA I believe he just ordered more physical therapy. \n\nYousey – H104448 \n \n-8- \n \nQ Well, on October 14\nth\n of 2021 when he released you \nfinally, did you tell him you were still having those symptoms? \n \nA I believe – I figured I was getting as good as I was going to \nget so I didn’t say thing to him about it. \n \nQ And do you feel that the physical therapy did help the \nstiffness in your hand? \n \nA It did help me limber up after my surgery and everything; \nbut it was never back to normal. \n \nQ Do you feel that the physical therapy helped the numbness \nin your arm or your hand? \n \nA No. It never really did anything for the numbness of my \narm or my hand. \n \n The claimant testified that after he was released by Dr. Johnson to full duty, he returned \nto work but not for the respondent. On direct examination the claimant testified as to why he did \nnot return to work for the respondent as follows: \nQ Now, after you were released by Dr. Johnson, did you go \nback to Blackhawk? \n \nA No. \n \nQ Why not? \n \nA Because I knew I wasn’t going to be able to do the work \nthat I used to do before my accident there. \n \nQ And why was that? What would have prevented you from \ndoing that kind of work? \n \nA The heavy lifting and holding on to 25- to 30 pounds all \nday for eight hours a day. \n \nQ Why did you think you would not be able to do that? \n \nA Because my arm, my right arm would get tired and go \nnumb and I didn’t think it would help the cause any. \n\nYousey – H104448 \n \n-9- \n \nQ Now, since your accident happened, has there ever been a \ntime that your right hand and arm have felt normal? \n \nA No. \n \n The claimant began working for his father-in-law at Josh Worley Painting. The \nclaimant’s work duties when he started included prep work and taping of windows, doors, and \nbaseboards. The claimant eventually moved into painting, a job duty he was performing at the \ntime of the hearing in this matter. The claimant testified that he was able to do the work of a \npainter. Even though he is right-hand dominate, he considers himself ambidextrous. The \nclaimant testified on direct examination about his ability to work as a painter as follows: \nQ Okay. And how has that been with your right hand and \narm? \n \nA It’s a lot easier on it. I can paint with my right hand. I also \nswitch off with my left hand. I can do it well with both. But I do \ndrop a lot of things with my right hand, so I take more breaks and \nuse my left hand more than my right. \n \n The claimant requested and then received a Change of Physician from the Commission \non September 21, 2022. The claimant’s Change of Physician allowed him to see Dr. James \nKelly, who practices plastic and reconstructive surgery along with hand and microsurgery. \n Dr. Kelly saw the claimant in October of 2022 and authored a letter regarding the \nclaimant. That letter is found at Respondents’ Exhibit 1, pages 41-42. Following is the body of \nthat letter: \nThank you very much for referring Levi Yousey for consultation. \nAs you are aware, he is a 25-year-old gentleman who on 5/14/2021 \nhad a tire blow up and injure his right arm. He was an employee of \nBlacklock auto and tire at the time. This required ORIF of an open \nfracture to his right radial shaft as well as pinning of his right 5\nth\n \nproximal phalanx. This was completed by Dr. Jeff Johnson in \nBentonville. The fracture went on to heal well both in the finger \n\nYousey – H104448 \n \n-10- \nand the forearm. He went through post operative therapy for about \ntwo months. He presents today with two different complaints. First \nof all, he is getting numbness, predominately in the 1\nst\n, 2\nnd\n, and 3\nrd\n \nfingers, that wakes him at night. This happens multiple times a \nweek. He also gets aching pain in the volar forearm when he is \nusing and complains of weakness in the arm and forearm. States he \ndrops objects. \n \nIn examining him, he had a positive compression test over the \npronator tunnel. He also had positive Tinel’s, Phalen’s and \ncompression test at the wrist. His sensation was about 7 mm in the \nmedian distribution of the right hand. Costal compression and \ncervical examinations were negative. His x-rays were examined \nand showed excellent healing and anatomical alignment of the \nradius. \n \nI think this gentleman has pronator tunnel plus or minus carpal \ntunnel syndrome. Carpal tunnel is likely given the numbness when \nhe is sleeping. The weakness and pain in the forearm when he is \nusing his arm would be more related to pronator tunnel syndrome. \nWith a midshaft radial fracture it is not uncommon to see these \ntypes of problems due to postoperative scarring and scarring from \nthe actual injury itself. I am going to order EMG/NCV studies to \nbe completed on him. I want to see him back here in the office to \nreview the results. I will make appropriate recommendations there \nafterwards. I will of course be following him through his care. \n \n On November 2, 2022, the claimant underwent an EMG of his right upper extremity with \nDr. Miles Johnson of Northwest Arkansas EMG Clinic. Following is a portion of that diagnostic \nreport: \nCHIEF COMPLAINT: Right upper extremity pain, numbness, \ntingling, and weakness. \n \nHISTORY OF PRESENT ILLNESS: Patient is a 25-year-old right-\nhanded male who sustained a right radius fracture at work on May \n14, 2021 when a tire exploded. He has undergone ORIF. He is now \nnoticing pain in the extremity when he lifts objects. He gets \nintermittent numbness and tingling in the hand which is often \nworse at night. There is some improvement with shaking the \nextremity. He denies any neck pain. Patient has been seen by Dr. \nKelly and is referred for electrodiagnostic testing of the right upper \nextremity. \n\nYousey – H104448 \n \n-11- \n \n*** \nSUMMARY: Right median, radial, and ulnar motor studies are \nnormal. Right median ulnar orthodromic sensory latency difference \nis normal. Medial sensory response to the third digit revealed \nnormal distal latency, amplitudes, forearm and elbow conduction \nvelocities. Right radial sensory response of the first digit was \nnormal. Right lateral antebrachial cutaneous sensory response was \nnormal. EMG examination of the right upper extremity was within \nnormal limits. \n \nASSESSMENT: Mild right carpal tunnel syndrome. There is no \nelectrodiagnostic evidence of radiculopathy, plexopathy, \ngeneralized peripheral neuropathy or other peripheral nerve \nentrapment syndromes. Specifically no evidence of a proximal \nmedian neuropathy. \n \nPLAN: Patient has been counseled regarding the above findings \nand has been instructed to schedule a followup appointment in \nyour office for further evaluation in order to utilize these results in \nthe treatment/management of their condition. \n \n On November 9, 2022, the claimant was again seen by Dr. Kelly. Following is a portion \nof that progress notes: \nMr. Yousey presents to the office today in follow-up after having \nhad EMG/NCV studies completed. I suspect that he does have \nright carpal tunnel syndrome. He of course also has a positive \ncompression test over the pronator and that would be compatible \nwith pronator tunnel syndrome which he gets aching pain in the \nforearm when he uses his arm. With him having a midshaft radial \nfracture, with that approach, it is not uncommon to see this. My \nplans therefore are to take him the OR, we will do a right \nendoscopic carpal tunnel release and fascial release of the forearm. \nWe will also explore the median nerve through the pronator tunnel \nand likely release the constriction at the supinator. Patient \nunderstands the plan and I will make arrangements to get this done \nand I will be seeing him back here in the office of course in follow-\nup. He will be on one handed duties for 2 weeks and light duties \nfor 2 weeks. At 4 weeks, he will be free to do anything he would \nlike with no restrictions on the hand. \n \n\nYousey – H104448 \n \n-12- \n The claimant has asked the Commission to determine whether he is entitled to surgery for \nhis compensable right upper extremity injury as recommended by Dr. James Kelly. It is the \nclaimant’s burden to prove that the surgery recommended by Dr. Kelly is reasonable necessary \ntreatment for his compensable injury. \n The respondent introduced a document dated December 13, 2022, from a company called \ngenex that is titled, “Physician Advisor Report.” That document is signed by Dr. Victoria Knoll, \nwho is licensed in Texas, and that document can be found at Respondents’ Exhibit 1, pages 50-\n53. Following is a portion of that document: \nDiagnosis: Diagnosis: mild right carpal tunnel syndrome. \n \nTreatment Requested: Right Endoscopic Carpal Tunnel Release & \nFacial release forearm, & right pronator tunnel release CPT-29848, \n25020, 29125, 64708 Body side/parts: right lower arm, right upper \narm, right fingers, right upper leg, right chest. \n \nRequesting Provider Name: James Kelly, MD. \n \nDetermination: Adverse Determination. \n \nSummary of Clinical Condition \nThis case involves a 25-year-old with a history of an occupational \nclaim from 5/14/2021. The mechanism of injury was described as a \nmotor vehicle accident. The current diagnosis includes mild right \ncarpal tunnel syndrome. Comorbidities were documented as \nhistory of right midshaft radial fracture, history of right radial open \nreduction and internal fixation (ORIF) with pinning of fifth \nproximal phalanx. 10/17/2022 letter indicated the claimant has \nnumbness in the 1\nst\n-3\nrd\n right fingers that wakes the claimant up at \nnight multiple times a week, as well as pain in the volar forearm \nwith use, weakness in the hand and forearm, resulting in dropping \nobjects. Physical exam of right upper extremity noted a positive \ncompression test over pronator tunnel, positive Tinel’s, Phalen’s \nand compression test at the wrist. Progress note dated 11/09/2022 \nindicated the claimant has had aching pain in the right forearm \nwith use, has a positive compression test over the pronator, fascial \nrelease of the forearm, as well as exploration of the median nerve \nthrough the pronator tunnel with possible release of constriction at \n\nYousey – H104448 \n \n-13- \nthe supinator. 11/02/2022 Electromyogram (EMG)/Nerve \nconduction study (NCS) of right upper extremity noted mild right \ncarpal tunnel syndrome. This review pertains to the request of right \nendoscopic carpal tunnel release and fascial release forearm, and \nright pronator tunnel release for the right lower arm, right upper \narm, right fingers, right upper leg, right chest, per CPT codes \n29848, 25020, 29125, 64708. \n \n The respondent also introduced a letter that is authored by a respondent carrier employee, \nTracy Hogan, RN. That letter is dated December 14, 2022, and is addressed to Dr. James Kelly. \nThe document is found at Respondents’ Exhibit 1, pages 54-56. It appears to be advising Dr. \nKelly of Dr. Knoll’s Physician Advisor Report of December 13, 2022. That letter does a good \njob of summarizing the longer Physician Advisor Report’s adverse determination as follows: \nBased upon the information obtained, it has been determined that \nthe proposed treatment does not meet medical necessity guidelines. \n \nThe principle reason for the determination is: \nOfficial Disability Guidelines conditionally recommend carpal \ntunnel release surgery for carpal tunnel syndrome. Guidelines \nindicate surgery for non-severe carpal tunnel syndrome (CTS) with \nabnormal Katz hand diagram scores, nocturnal symptoms, Flick \nsign, positive testing on physical exam, with failure of 3 types of \nconservative care such as activity modification, night wrist splint, \nnonprescription analgesia, home exercise program. 10/17/2022 \nletter indicated the claimant has numbness in the 1\nst\n-3\nrd\n right \nfingers that wakes the claimant up at night multiple times a week, \nas well as pain in the volar forearm with use, weakness in the hand \nand forearm, resulting in dropping objects. Treatments have \nincluded postoperative physical therapy. Records do not indicate \nthe presence of abnormal Katz diagram scores, Flick sign, or the \nfailure of conservative care. Therefore, the request for right \nendoscopic carpal tunnel release, per CPT code 29848, is \nnoncertified. \n \nOfficial Disability Guidelines conditionally recommend \nDupuytren, fasciectomy, or fasciotomy for the forearm, wrist, and \nhand conditions. Guidelines indicate Dupuytren release for \ncontracture of the proximal or distal interphalangeal joint, the \nmetacarpophalangeal joint that interferes with hand function, rapid \nprogression of finger contracture, or symptomatic worsening \n\nYousey – H104448 \n \n-14- \nfibromatosis in the hand. A progress note dated 11/09/2022 \nindicated the claimant has had aching pain in the right forearm \nwith use and has a positive compression test over the pronator. \nTreatment has included post-operative physical therapy. Records \ndo not indicate the presence of contracture or fibromatosis in the \nhand. Therefore, the request for the right hand endoscopic fascial \nrelease forearm, per CPT code 25020, is noncertified. \n \nOfficial Disability Guidelines do not recommend surgery for radial \ntunnel syndrome. Guidelines indicate surgery is not recommended \nexcept after 6 months of conservative care with abnormal \nelectrodiagnostic studies (EDS) studies and objective signs of \nfunctional loss, noting outcomes associated with workers’ \ncompensation have been predictably worse. 10/17/2022 letter \nindicated the claimant has numbness in the 1\nst\n-3\nrd\n right fingers that \nwakes the claimant up at night multiple times a week, as well as \npain in the volar forearm with use, weakness in the hand and \nforearm, resulting in dropping objects. A physical exam of the \nright upper extremity noted a positive compression test over \npronator tunnel, positive Tinel’s, Phalen’s, and compression test at \nthe wrist. The request is not consistent with the guidelines. \nTherefore, the request for right endoscopic pronator tunnel release, \nper CPT code 64708 is noncertified. \n \nOfficial Disability Guidelines recommend splints for forearm, \nwrist, and hand conditions. Guidelines indicate the use of splints \nfor displaced fractures. 10/17/2022 letter indicated the claimant has \nnumbness in the 1\nst\n-3\nrd\n right fingers that wakes the claimant up at \nnight multiple times a week, as well as pain in the volar forearm \nwith use, weakness in the hand and forearm, resulting in dropping \nobjects. Treatments have included post-operative physical therapy. \nRecords to not indicate the medical necessity of the request. \nTherefore, the request for the right lower arm, CPT 29125, is \nnoncertified. \n \n Dr. Knoll’s Physician Advisor Report is in clear disagreement with the recommendation \nof Dr. Kelly’s November 9, 2022, progress note, which was issued after the claimant’s EMG and \nsecond examination by Dr. Kelly. In that progress note, Dr. Kelly makes a recommendation of \nsurgical intervention. Dr. Knoll, who is licensed in Texas, has never seen the claimant and has no \ndoctor/patient relationship with the claimant. Given the claimant’s continued symptoms of \n\nYousey – H104448 \n \n-15- \nnumbness, even after Dr. Johnson’s surgical intervention and conservative after-care which \nincluded at least 18 physical therapy visits from July 30, 2021, to October 12, 2021, and splinting \nof the claimant’s right upper extremity, I find Dr. Kelly’s surgical recommendations reasonable \nnecessary medical treatment for the claimant’s compensable right upper extremity injury. \nCertainly, Dr. Kelly is in a superior position to make recommendations for the claimant’s \nmedical treatment as Dr. Knoll has never seen the claimant. As such, I give much more weight to \nDr. Kelly’s surgical recommendations than the recommendations of Dr. Knoll. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe his demeanor, the following findings of fact and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The stipulations agreed to by the parties at the pre-hearing conference conducted on \nFebruary 6, 2023, and contained in a Pre-hearing Order filed February 7, 2023, are hereby \naccepted as fact. \n 2. The claimant has proven by a preponderance of the evidence that he is entitled to \nsurgery for his compensable right upper extremity injury as recommended by Dr. James Kelly. \n ORDER \nThe respondents shall pay the costs associated with the surgical intervention of the \nclaimant’s compensable right upper extremity as recommended by Dr. James Kelly, including \nthe claimant’s after-care. \nPursuant to A.C.A. §11-9-715(a)(1)(B)(ii), attorney fees are awarded “only on the \namount of compensation for indemnity benefits controverted and awarded.” Here, no indemnity \n\nYousey – H104448 \n \n-16- \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded. Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf they have not already done so, the respondents are directed to pay the court reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n \n ____________________________ \n HONORABLE ERIC PAUL WELLS \n ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H104448 LEVI YOUSEY, Employee CLAIMANT BLACKHAWK AUTO & TIRE, Employer RESPONDENT TRAVELERS INDEMNITY COMPANY, Carrier RESPONDENT OPINION FILED JULY 11, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. 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