{"id":"alj-H106980-2023-05-31","awcc_number":"H106980","decision_date":"2023-05-31","opinion_type":"alj","claimant_name":"Travis Evans","employer_name":"Ark. Dept. Of Transportation","title":"EVANS VS. ARK. DEPT. OF TRANSPORTATION AWCC# H106980 MAY 31, 2023","outcome":"granted","outcome_keywords":["granted:6"],"injury_keywords":["back","hip","lumbar","knee","strain","herniated"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/EVANS_TRAVIS_H106980_20230531.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EVANS_TRAVIS_H106980_20230531.pdf","text_length":32783,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H106980 \n \nTRAVIS EVANS, Employee                                                                            CLAIMANT \n \nARK. DEPT. OF TRANSPORTATION, Employer                                     RESPONDENT                         \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier                                    RESPONDENT                         \n \n \n OPINION FILED MAY 31, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents   represented   by   CHARLES   H.   MCLEMORE,   Attorney,   Little   Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n  \n On May 15, 2023, the above captioned claim came on for hearing at  Fort Smith, \nArkansas.  A pre-hearing conference was conducted on March 1, 2023 and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #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 the \nwithin claim. \n 2.      The  claimant  sustained  a  compensable  injury  to  his  left  lower  extremity  on \nAugust 18, 2021. \n 3.   The claimant was earning an average weekly wage of $853.69 which would \nentitle him to compensation at the weekly rates of $569.00 for total disability benefits and \n\nEvans – H106980 \n \n2 \n \n$427.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability of injury to claimant’s back on August 18, 2021; or,  \nalternatively,  that  his  back  complaints  are  a  compensable  consequence  of  his  left  leg \ninjury. \n2.  Temporary total disability benefits from October 12, 2022 through a date yet to  \nbe determined. \n3.   Related medical. \n4.  Attorney fee. \n5.  Credit for overpayment. \n6.  Notice. \nClaimant  clarified  prior  to  the  hearing  that  he  is  contending  that  he  suffered  a \ncompensable  injury  to  his  left  hip,  pelvis,  and  back  on  August  18,  2021.   In  addition, \nclaimant clarified that he is requesting temporary total disability benefits from October 12, \n2022 through April 3, 2023. \nThe claimant contends  that on August 18, 2021, in addition to sustaining injury to \nhis hamstring and left lower extremity, he sustained injury to his back, left hip and pelvis.  \nAlternatively, the claimant’s problems with his back are a compensable consequence of \nthe effects of the injury to his hamstring and left lower extremity.   The claimant contends \nhe is entitled to temporary total disability benefits from October 12, 2022 through April 3, \n2023,  and  reasonably  necessary  medical  treatment.    The  claimant  contends  that  any \nbenefits  regarding  his  back  have  been  controverted  and  that  his  attorney  is  therefore \nentitled to an appropriate attorney’s fee regarding any indemnity benefits awarded related \n\nEvans – H106980 \n \n3 \n \nto  his  back.  The  claimant  contends  his attorney  is  entitled  to  an appropriate  attorney’s \nfee. \nThe respondents contend that the claimant reported having an injury to his upper \nleft leg on August 18, 2021 when he stepped out of his truck.  Respondents accepted this \nclaim as compensable and provided medical treatment reasonable and necessary for the \nclaimant’s left leg injury.  The claimant has been provided medical treatment, including \nMRI and EMG studies, and treatment with Dr. Bryan Smith.  On March 3, 2022,Dr. Smith \nopined  that  surgery  was  not needed  for  the left  leg, and  ordered  an  FCE to determine \nimpairment.    The  claimant  did  not  have  the  FCE.    Respondent  paid  temporary  total \ndisability benefits to the claimant while he was in his healing period, from August 19, 2021 \nuntil December 30, 2021; however, the claimant had returned to work December 2, 2021 \nresulting in an overpayment of TTD benefits for which respondent is entitled to a credit.  \nThe  claimant  complained  about  his  back.    Respondents  provided  the  claimant  with  a \nlumbar MRI; however, respondent contends that the claimant gave no notice of having a \nback injury at the time of his August 18, 2021 injury, and did not claim a back injury before \nfiling his November 16, 2022 form AR-C.  Respondents further contend claimant cannot \nestablish that he has a back, left hip or pelvis injury which occurred August 18, 2021. Dr. \nSmith  did  not  offer  any  surgery  for  claimant’s  back  complaints.    Dr.  Smith  found  the \nclaimant reached maximum medical improvement for his left leg injury October 11, 2022 \nbut  did  not  address  permanent  anatomical  impairment  because  claimant  would  not \nparticipate in an FCE, so respondent voluntarily paid the claimant PPD benefits for 7% \npermanent anatomical impairment to the left lower extremity.   \n    \n\nEvans -  H106980 \n \n4 \n \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non  March 1, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his lumbar spine on August 18, 2021.  Claimant \nhas failed to prove by a preponderance of the evidence that he suffered a compensable \ninjury  to  his  pelvis  or  left  hip  on  August  18,  2021  or  that  those are  compensable \nconsequences of his left leg injury. \n 3.  Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s lumbar spine injury. \n 4.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to temporary total disability benefits beginning October 12, 2022 and \ncontinuing through March 27, 2023. \n 4.  Claimant did not fail to give notice of his injury pursuant to A.C.A. §11-9-701. \n 5.  Respondent is entitled to a credit for temporary total disability benefits claimant \nwas paid subsequent to his return to work on December 2, 2021. \n 6.  Respondent  has  controverted  claimant’s  entitlement  to  all  unpaid  indemnity \n\nEvans -  H106980 \n \n5 \n \nbenefits. \n FACTUAL BACKGROUND \n Claimant worked for the Arkansas Highway Department and on August 18, 2021 \nhe  suffered  an  admittedly  compensable  injury  to  his  left  lower  extremity.    Claimant \ntestified that on that date he was in the process of delivering a piece of equipment when \nhis truck died as he pulled out into an intersection.  As he was getting out of his truck he \nput his foot on the bottom step and it slipped causing his leg to hit the ground.  Claimant \nstated: \n  I tore the hamstring somewhere up in my hip.  It feels like \n  maybe about the center of my backside.  It hurts all the way \n  from my belt loop down into the back of my knee and then \n  over to the side of my knee. \n \n \n Later that day claimant was seen by Dr. Christopher Bell in the emergency room \nwho diagnosed claimant as suffering from a left hamstring  strain.  Thereafter, claimant \nhas primarily been treated by Dr. Bryan Smith, an orthopedist at Mercy in Fort Smith. \n Claimant’s initial evaluation with Dr. Smith occurred on August 23, 2021.  Dr. Smith \ndiagnosed  claimant  as  suffering  from  a  left  hamstring  injury  and  was  concerned  about \nclaimant having torn the hamstring.  As a result, he recommended that claimant undergo \nan MRI scan of the femur “to include the proximal aspect, all the way up to the hamstring \norigin, all the way down to the level of the knee.”  Claimant underwent the MRI scan on \nAugust 25, 2021, and according to Dr. Smith’s report of August 26, 2021 the MRI scan \nwas consistent with a complete tear of the biceps femoris tendon.  However, Dr. Smith \nnoted  that  claimant’s  semitendinosus  and  semimembranosus  tendon  were  intact.    Dr. \nSmith  indicated  that  his  plan  was  to  treat  claimant  nonoperatively  with  activity  limits, \n\nEvans -  H106980 \n \n6 \n \nphysical therapy, and anti-inflammatory medication. \n Claimant returned to Dr. Smith on September 9, 2021 at which time he noted that \nclaimant was having increased anterior knee pain at the level of the patellar tendon.  Dr. \nSmith prescribed muscle relaxers and again recommended physical therapy as well as a \nhinged knee brace. \n At the time of the visit on October 7, 2021, claimant had been undergoing physical \ntherapy.    Because  of  claimant’s  continued  complaints  involving  his  knee,  Dr.  Smith \nrecommended  and  performed  a  knee  injection  for  the  purpose  of  relieving pain  and  to \ndetermine whether there was any intra-articular involvement such as a potential meniscus \ntear. \n Claimant  returned  to  Dr.  Smith  on  November  2,  2021,  and  reported  that  the \ninjection had helped with pain and popping in his left knee.  However, claimant continued \nto have pain and as a result Dr. Smith ordered an MRI scan of the femur and left knee.  \nClaimant underwent those MRI scans on November 19, 2021, and returned to Dr. Smith \non November 29, 2021.  Dr. Smith noted that the MRI of claimant’s left knee was negative \nfor any internal derangement such as meniscus tears.  Specifically, he stated: \n  I think what he is dealing with now is more chondromalacia \n  of the patella as well as some patellar maltracking secondary \n  to weakness in the quadriceps.   \n \n \n Claimant again returned to see Dr. Smith on January  4, 2022 and he noted that  \nclaimant had returned to work since the time of his last visit.  Claimant indicated that when \nhe was standing or walking on even surfaces he was not having any issues, but when he \nwas on hills or rough terrain he had complaints.  Dr. Smith stated: \n\nEvans -  H106980 \n \n7 \n \n  It is possible that some of this is related to patellar \n  tracking issues that may have been present before \n  and now are exacerbated as he has to compensate \n  for recovering hamstring injury.   \n \n \n Claimant’s next visit with Dr. Smith occurred on February 1, 2022 and he noted \nthat claimant continued to have problems with standing for extended periods of time and \nthat claimant felt like he was “hanging” his left toes and catching them.  At this point, Dr. \nSmith became concerned that claimant’s problems were related to his low back. \n  My concern is that given his current limitations, perhaps \n  this is more indicative of radiculopathy as he has failed \n  to make substantial improvements with treatments directed \n  at the hamstring and the knee. \n \n \n Dr.  Smith  ordered  an EMG/nerve  conduction  study  of  the  left  lower  extremity  to \nrule  out  any  radiculopathy.    The  EMG  was  performed  on  February  17,  2022,  and was \nread as normal. \n Following the EMG claimant  returned to Dr. Smith on March 3, 2022.  Dr. Smith \nagain noted that there was not anything from a surgical standpoint that he could do, but \ninstead indicated that claimant could best be served with a FCE and impairment rating. \n It should be noted at this point that there was much discussion and testimony at \nthe hearing regarding the FCE.  While there was some indication on claimant’s part that \nthis FCE was suggested by the respondent, it is clear from a review of Dr. Smith’s March \n3, 2022 report that he recommended the FCE.  Regardless, claimant did not undergo an \nFCE but did return to work for the respondent.  After returning to work for the respondent, \nclaimant had a second incident.  Claimant testified that sometime in April 2022 he was \nwalking up and down an embankment under a bridge and his hamstring began to hurt \n\nEvans -  H106980 \n \n8 \n \nand “... the back of  my knee just felt like it opened up like there wasn’t nothing holding it.  \nIt got to hurting and popping.”  Respondent had claimant complete additional paperwork \nregarding this second incident; however, claimant is proceeding with the contention that \nhis current problems are simply a continuation of the August 18, 2021 incident. \n Following  this  incident,  claimant  returned  to  Dr.  Smith  on  April  19.    Because \nclaimant  was  having mechanical  symptoms  in  his  knee,  Dr.  Smith  was  concerned  that \nthere might be some meniscal pathology and he ordered a repeat MRI scan of the left \nknee.  That scan was performed on May 4, 2022, and showed no evidence of internal \nderangement. \n Following  the  MRI  scan  Dr.  Smith  nevertheless  recommended  that  claimant \nundergo  a  diagnostic  arthroscopic  procedure.    Although  claimant  had  undergone  two \nMRIs  which  were  both  normal,  he  noted  that  claimant  continued  to  have  mechanical \nsymptoms in his left knee.  As a result, he recommended an arthroscopic procedure.  This \nprocedure was performed on May 18, 2022 and according to Dr. Smith’s operative report \nhis post-operative diagnosis was anterior fat pad impingement, patellar chondromalacia \nand medial plica syndrome.   \n Subsequent reports from Dr. Smith indicate that following the surgical procedure \nclaimant’s knee was “1000 times better” and “excellent”.  However, Dr. Smith noted that \nclaimant continued to have problems in his posterior thigh and hamstrings.   \n In his report of September 13, 2022, Dr. Smith again recommended that claimant \nundergo an evaluation for his lumbar spine.   \n  I would like to work up his back starting with lumbar \n  spine xrays and lumbar spine MRI. \n \n\nEvans -  H106980 \n \n9 \n \n \n The lumbar spine MRI was performed on September 29, 2022, and contained the \nfollowing impression: \n1.  Mild-moderate degenerative change throughout the  \nlumbar spine. \n2.  Small broad-based disc protrusion eccentric to the \nright at L5-S1. \n \n Following the MRI scan claimant returned to Dr. Smith on October 11, 2022.  At \nthat time Dr. Smith again believed that claimant’s problems might be related to his back.   \n  I am somewhat concerned that all this is really more \n  related to his back.  We had a long discussion about \n  this.  I think it would be wise for us to get him set up \n  with pain management for a trial of lumbar epidural \n  steroid injections to assess how his left lower extremity \n  responds.  With regard to left lower extremity, I do not \n  have any further surgical interventions, but I am happy \n  to see him through the results of his lumbar spine \n  injections.   \n \n \n Claimant was evaluated by Dr. Natalie Strickland, a pain management specialist, \non  November  16,  2022.    Dr.  Strickland diagnosed  claimant  as  suffering  from  lumbar \nradicular   pain;   lumbar   herniated  disc;   spondylosis   of   lumbosacral   region   without \nmyelopathy  or  radiculopathy;  chronic  bilateral  low  back  pain  without  sciatica.    Dr. \nStrickland gave claimant a lumbar epidural steroid injection at the L5-S1 level.   \n Claimant returned to Dr. Smith on December 13, 2022, and apparently informed \nDr.  Smith  that  he  had  not  noticed  a  whole  lot  of  difference  in  his  day  to  day  activities \nfollowing the injections; however, he indicated that his wife felt like he had slept better the \nlast several nights.  Dr. Smith stated: \n  We thought he had his hamstring injury.  I did not feel \n  that surgical intervention was warranted.  It has taken \n\nEvans -  H106980 \n \n10 \n \n  him a long time, he has been dealing with it for a year. \n  We were concerned that this might be more of a lumbar \n  radiculopathy type picture. \n \n  \nDr.  Smith  recommended  that  claimant  continue  his  follow  up  treatment  with  the  pain \nmanagement doctor and see if future injections gave him any relief. \n On March 27, 2023, claimant was evaluated by Dr. William Rambo, neurosurgeon.  \nDr.  Rambo  diagnosed  claimant’s  condition  as  lumbar/lumbosacral  spondylosis.    Dr. \nRambo  did  not  believe  that  claimant  needed  any  surgical  intervention, but  did  indicate \nthat claimant should undergo an epidural steroid injection at the L4-5 level.  Dr. Rambo \nalso indicated that claimant had no disability or work restrictions with respect to his lumbar \nspine. \n The  final medical  report  is  from  Dr.  Smith  dated  April  6,  2023, at  which  time  he \nrecommended   that   claimant   follow   up   with   the   pain   management   specialist   for \nconsideration of an epidural steroid injection at the L4-5 level.  In addition, the claimant \nalso returned to work for respondent on April 2, 2023. \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis left hip, pelvis, and back as a result of the incident on April 18, 2021, or alternatively, \nthat his back complaints are a compensable consequence of his left leg injury.  He seeks \npayment of related medical treatment as well as temporary total disability benefits and a \ncontroverted attorney fee. \nADJUDICATION \n \n The initial issue for consideration involves compensability to the claimant’s back, \npelvis,  and  left  hip.    In  order  to  prove  a  compensable  injury  as  a  result  of a  specific \n\nEvans -  H106980 \n \n11 \n \nincident,  identifiable  by  time  and  place  of  occurrence,  claimant  must  prove  by  a \npreponderance  of  the  evidence  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment; (2) the injury caused internal or external harm to the body which required \nmedical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence  supported  by \nobjective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, 2011 \nArk. App. 450, 384 S.W. 3d 630. \n Here, there is no question that the incident on August 18 arose out of and in the \ncourse of claimant’s employment with respondent.  I also find that the claimant has offered  \nmedical  evidence  supported  by  objective  findings establishing  a  compensable  injury  to \nhis  back.    Claimant  underwent  a  lumbar  MRI  scan  on  September  29,  2022,  which \nrevealed a disc protrusion at the L5-S1 level.  In addition, claimant’s treating physicians \nhave recommended medical treatment for his lumbar spine in the form of lumbar epidural \nsteroid injections initially at L5-S1 and most recently at L4-5.   \n The  primary  issue  is  whether  claimant  has  proven  by  a  preponderance  of  the \nevidence that his low back complaints are causally related to the incident of August 18, \n2021.   \n As previously noted, respondent has accepted a compensable injury to claimant’s \nleft lower extremity.  Admittedly, the forms signed by the claimant and the medical records \nfor an extended period of time make no  mention of any low back complaints.  Instead, \nthe  only  reference  is  to  an  injury  to  the  claimant’s  upper  left  leg  (lower  extremities); \npossible  hyperextension  of  the  left  knee  and  upper  left  leg;  and  a  tear  or  rip  to  the \nhamstring.      Based   on   claimant’s   complaints   involving   his   hamstring,   Dr.   Smith \n\nEvans -  H106980 \n \n12 \n \nrecommended  various  medical  treatments.    When  those  treatments  did  not  alleviate \nclaimant’s symptoms, Dr. Smith began to consider that claimant’s complaints were related \nto his low back.  In his report of February 1, 2022, Dr. Smith stated: \n  My concern is that given his current limitations, perhaps \n  this is more indicative of radiculopathy as he has failed \n  to make substantial improvements with treatments \n  directed at the hamstring and the knee. \n \n \n Dr.  Smith  went  on  to  recommend  an  EMG  of  the  claimant’s  left  lower  extremity \nwhich was read as normal.  Thereafter, claimant had the second incident in April 2022 \nand continued to have complaints involving his leg and his left knee.  Dr. Smith performed \nsurgery on claimant’s left knee which alleviated most if not all of the left knee complaints.  \nHowever, claimant continued to have issues with his hamstring.  Accordingly, Dr. Smith \nin his report of September 13, 2022 again recommended that claimant be evaluated for \nlow back issues.   \n  I would like to work up his back starting with lumbar \n  spine xrays and lumbar spine MRI. \n   \n \n The  lumbar  MRI  scan  was  performed  on  September  29,  2022  and  revealed \ndegenerative changes as well as a disc protrusion at the L5-S1 level.  Following that MRI \nscan Dr. Smith in his report of October 11, 2022 stated: \n  I am somewhat concerned that all this is really more \n  related to his back. \n \n \n Dr. Smith went on to recommend that claimant undergo a trial of lumbar epidural \nsteroid injections to see how his left lower extremity responded.  Claimant underwent the \ninitial epidural steroid injection at the L5-S1 level by Dr. Strickland on November 16, 2022.  \n\nEvans -  H106980 \n \n13 \n \nDr. Strickland’s diagnosis of the claimant’s condition was lumbar radicular pain; lumbar \nherniated disc; spondylosis of lumbosacral region without myelopathy or radiculopathy; \nand chronic bilateral low back pain without sciatica.   \n  Following  this  injection  claimant  again  returned  to  Dr.  Smith  on  December  13, \n2022, at which point he stated: \n  We thought he had his hamstring injury.  I did not feel that \n  surgical intervention was warranted.  It has taken him a \n  long time, he has been dealing with it for a year.  We are \n  concerned that this might be more of a lumbar radiculopathy \n  type picture.  (Emphasis added.) \n \n \n Subsequent  to  that  evaluation  claimant  was  seen  by  Dr.  William  Rambo,  a \nneurosurgeon,  on  March  27,  2023.    Dr.  Rambo  diagnosed  claimant’s  condition  as  a \nlumbar/lumbosacral spondylosis.  In his report of that date he stated: \n  Tough situation.  He has been thoroughly evaluated and \n  treated since his work-related injury in 2021.  I think his \n  pain is probably multifactorial including hamstring and  \n  knee etiologies.  Arguing against a radiculopathy is that \n  his pain stops at the knee and his MRI findings are mild \n  and mostly right-sided.  However he does have some \n  mild lateral recess stenosis at L4-L5.   While this is not \n  bad enough to warrant surgical intervention, it is possible \n  that it is contributing to his clinical picture. \n \n \n Dr.  Rambo  went  on  to  recommend  that  claimant  receive  an  epidural  steroid \ninjection at the L4-5 level. \n Obviously, the claimant is not a physician.  Claimant has repeatedly informed his \ntreating physicians that he has had pain radiating from his beltline down to the back of his \nknee.  It is also clear that claimant did have a tear in one of the tendons of his hamstring \nand also had issues with his left knee which required surgery by Dr. Smith.  However, \n\nEvans -  H106980 \n \n14 \n \nclaimant’s  complaints  have  continued  in  his  left  leg.    Because  of  those  continued \ncomplaints  Dr.  Smith  was  of  the  opinion  that  claimant  might  have  a  low  back  issue \ninvolving  radiculopathy  and  recommended  lumbar  epidural  steroid  injections.    These \ninjections have been performed by Dr. Strickland.  Dr. Strickland has diagnosed claimant \nwith low back complaints and claimant has also  undergone an evaluation by Dr. Rambo \nwho is of the opinion that claimant’s complaints are probably multifactorial which include \nhamstring  and  knee  etiologies.    He  has  also  indicated  that  while  claimant’s  low  back \ncomplaints are not significant enough to warrant surgical intervention, it is possible they \nare contributing to his complaints and he has recommended an epidural steroid injection \nat the L4-5 level.   \n I  find  based  upon  the  evidence  presented  that  claimant  has  met  his  burden  of \nproving by a preponderance of the evidence that he suffered a compensable injury to his \nlow  back  as  a  result  of  the  accident  on  August  18,  2021.    Claimant’s  complaints  have \nbeen consistent throughout his treatment and  it is the opinion of his treating physician, \nDr.  Smith,  that  those  complaints  have  a  radicular  component  for  which  he  has \nrecommended medical treatment.  Accordingly, I find that claimant has met his burden of \nproving by a preponderance of the evidence that he suffered a compensable injury to his \nlow back on August 18, 2021. \nI also find that claimant has failed to prove by a preponderance of the evidence \nthat he suffered a compensable injury to his left hip or pelvis separate and apart from the \nadmitted hamstring injury.  While claimant’s hip is mentioned in several medical reports, \nit is in connection with the claimant’s hamstring injury, not a separate injury to the left hip \nitself.  In short, after reviewing the evidence in this case; specifically, the medical records \n\nEvans -  H106980 \n \n15 \n \nof Dr. Smith as well as Dr. Strickland and Dr. Rambo, I do not find that claimant has met \nhis burden of proving by a preponderance of the evidence that he suffered a compensable \ninjury to his pelvis or left hip on August 18, 2021, or that he suffered an injury to his left \nhip or pelvis as a compensable consequence of his left leg injury. \n Having  found  that  claimant  suffered a  compensable  injury  to  his  lumbar  spine,  I \nfind  that  respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with that compensable injury. \n I also find that claimant is entitled to temporary total disability benefits beginning \nOctober  12,  2022  and  continuing  through  March  27,  2023.    In  order to  be  entitled  to \ntemporary total disability benefits, claimant has the burden of proving by a preponderance \nof  the  evidence  that  he  remains  within  his  healing  period  and  that he  suffers  a  total \nincapacity to earn wages.  Arkansas State Highway & Transportation Dept. v. Breshears, \n272 Ark. 244, 613 S.W. 2d 392 (1981).  \n Claimant  underwent  surgery  on  his  left  knee  by  Dr.  Smith  on  May  18,  2022.  \nAccording to Dr. Smith’s medical report of October 11, 2022, he was concerned at that \ntime that claimant’s complaints were related more to his back and recommended a trial \nof epidural steroid injections.  Dr. Smith also stated with regard to claimant’s left lower \nextremity he did not have any further surgical recommendations.  Dr. Smith took claimant \noff  work  that  day  to  be  evaluated  for  pain  management.    Respondent  ceased  paying \nclaimant temporary total disability as of that date because it did not accept claimant’s low \nback complaints as compensable.  However, based upon the finding that claimant’s low \nback complaints are a compensable injury, Dr. Smith’s continuation of claimant’s off work \nstatus as of October 11, 2022 and his continuation of that status in his report of December \n\nEvans -  H106980 \n \n16 \n \n13,  2022,  indicates  that  claimant  suffered  a  total  incapacity  to  earn  wages.   Likewise, \nclaimant’s  receipt  of    medical  treatment  in  the  form  of  epidural  steroid  injections \nestablishes that claimant remained within his healing period.  I find that claimant’s total \nincapacity to earn wages continued through March 27, 2023.  On that date, claimant was \nevaluated by Dr. Rambo who recommended an epidural steroid injection at the L4-5 level.  \nHowever, Dr. Rambo indicated that with respect to claimant’s lumbar spine “I cannot give \nhim any disability or work restrictions.”    Claimant  apparently  returned  to  work  for  the \nrespondent a few days after this evaluation by Dr. Rambo. \n Accordingly, I find that claimant has met his burden of proving by a preponderance \nof  the  evidence  that he  remained  within his healing  period and  that  he  suffered  a  total \nincapacity to earn wages from October 11, 2022, the date he was given an off work note \nfor  his  lumbar  spine  by  Dr.  Smith,  through  March  27,  2023,  the  date  claimant was \nevaluated by Dr. Rambo and he opined that he could not give claimant any disability or \nwork restrictions.  Therefore, claimant is entitled to temporary total disability benefits from \nOctober 12, 2022 through March 27, 2023. \n Other  issues  for  consideration  involve  respondent’s  request  for  a  credit  for \noverpayment.    Apparently,  claimant  returned  to  work  for  respondent  on  December  2, \n2021.   However,  respondent’s payment  records  indicate  that  respondent  paid  claimant \nadditional temporary total disability benefits from December 2, 2021 through December \n30, 2021.  Respondent is entitled to a credit for overpayment of those benefits. \nFinally, respondent contends that claimant did not give any notice of a back injury \nat the time of his August 18, 2021 injury and did not claim a back injury until he filed Form \nAR-C on November 16, 2022.  Therefore, respondent contends that it is not liable for any \n\nEvans -  H106980 \n \n17 \n \ncompensation benefits prior to that notice.   \n Notice  of  an  injury  or  death  is  governed  by  the  provisions  of  A.C.A.  §11-9-701.  \nSubsection (a)(1) of that statute states: \n  Unless an injury either renders the employee physically \n  or mentally unable to do so, or is made known to the \n  employer immediately after it occurs, the employee  \n  shall report the injury to the employer on a form \n  prescribed or approved by the Workers’ Compensation \n  Commission and to a person or at a place specified by \n  the employer, and the employer shall not be responsible \n  for disability, medical, or other benefits prior to receipt \n  of the employe’s report of injury.  (Emphasis added.) \n \n \n In addition, Subsection (b)(1)(A) states that failure to give notice shall not bar any \nclaim if the employer had knowledge of the injury or death and Subsection (B) indicates \nthat failure to give notice shall not bar any claim if the employee had no knowledge that \nhis condition or disease arose out of and in the course of his employment.   \n Here,  respondent  was  clearly  aware  that  claimant  had  suffered  a  compensable \ninjury.  Claimant was sent for treatment at the emergency room and he completed forms \nfor the respondent indicating that he had suffered an injury on August 18, 2021.  There is \nno requirement under A.C.A. §11-9-701 that claimant list every possible diagnosis which \nwill be made during the course of his treatment.  Claimant testified that he never really \nhad  any  back  pain  and  it  was  only  his  treating  physicians  who  concluded  that  his \ncomplaints were related to his low back and not entirely to his hamstring.  Nevertheless, \nrespondent  had  knowledge  of  claimant’s  injury;  therefore,  A.C.A.  §11-9-701  is  not \napplicable. \n \n\nEvans -  H106980 \n \n18 \n \nAWARD \n \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe suffered a compensable injury to his low back on August 18, 2021.  He has failed to \nprove by a preponderance of the evidence that he suffered a compensable injury to his \nleft  hip  or  pelvis  on  that  date  or  as  a  compensable  consequence  of  his  compensable \ninjuries.    Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable low back injury.  Claimant \nis entitled to temporary total disability benefits beginning October 12, 2022 and continuing \nthrough March 27, 2023.  Respondent is entitled to a credit for overpayment of temporary \ntotal disability benefits.   \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney  fee  based  upon  the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \n All sums herein accrued are payable in a lump sum and without discount. \n Respondents shall pay the court reporter’s charges for preparation of the hearing \ntranscript in the amount of $645.95. \n IT IS SO ORDERED. \n \n       ________________________________ \n        GREGORY K. STEWART \n        ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H106980 TRAVIS EVANS, Employee CLAIMANT ARK. DEPT. OF TRANSPORTATION, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED MAY 31, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian Coun...","fetched_at":"2026-05-19T23:08:08.071Z","links":{"html":"/opinions/alj-H106980-2023-05-31","pdf":"https://labor.arkansas.gov/wp-content/uploads/EVANS_TRAVIS_H106980_20230531.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}