{"id":"alj-H108549-2024-10-21","awcc_number":"H108549","decision_date":"2024-10-21","opinion_type":"alj","claimant_name":"Jose Betancourt","employer_name":"Bhi Energy, Inc","title":"BETANCOURT VS. BHI ENERGY, INC. AWCC# H108549 October 21, 2024","outcome":"granted","outcome_keywords":["granted:7"],"injury_keywords":["back","lumbar"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/BETANCOURT_JOSE_H108549_20241021.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BETANCOURT_JOSE_H108549_20241021.pdf","text_length":13677,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H108549 \n \nJOSE BETANCOURT, Employee                                                                   CLAIMANT \n \nBHI ENERGY, INC., Employer                                                                 RESPONDENT \n \nSTARR INDEMNITY/SEDGWICK, Carrier/TPA                                       RESPONDENT                                                                                                    \n \n \n OPINION FILED OCTOBER 21, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On October 2, 2024, the above captioned claim came on for hearing at Springdale, \nArkansas.    A  pre-hearing  conference  was  conducted  on August  19,  2024 and  a  pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’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 back on September 14, \n2021. \n 3.      Respondent  paid  permanent  partial  disability  benefits  based  on  an  8% \nimpairment rating to the body as a whole. \n\nBetancourt – H108549 \n2 \n \n 4.   Claimant was earning sufficient wages to entitle him to compensation at the \nweekly  rates  of  $675.00  for  total  disability  benefits  and  $507.00  for  permanent  partial \ndisability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Claimant’s entitlement to surgery recommended by Dr. Randolph. \n2.   Temporary total disability benefits as a result of the surgery. \n3.    Attorney’s fee. \nRespondent has also raised as an issue claimant’s correct permanent physical  \nimpairment  rating  as  a  result  of  the  surgery  performed  by  Dr.  Randolph in  April  2022.  \nRespondent  contends with  respect  to  this  issue  that  while  it  accepted  and paid  an  8% \nimpairment  rating,  the  correct  rating  should  have  been  2%.    Accordingly,  respondent \nrequests a credit.  Claimant contends that the impairment rating is 8% which was paid by \nthe respondent. \nThe  claimant  contends  that  two  surgeons  are  recommending  that  the  claimant \nundergo  additional  back  surgery  and  the  medical  records  indicate  that  the  need  for \nsurgery is due to a recurrent condition arising out of the September 14, 2021 injury.  The \nclaimant  contends  there  will  be  a  recovery  period  following  the  surgery  and  that  he  is \nentitled to temporary total disability benefits from the date of surgery until his then treating \nsurgeon releases him from active treatment or until he returns to work, whichever occurs \nsooner.   The  claimant  contends his  attorney  is  entitled  to  an attorney’s  fee  on  any \nindemnity benefits not previously paid.  \nThe  respondents  contend  claimant  injured  his  lumbar  spine  on  September  14, \n2021, and his claim was accepted.  He had surgery and was released to return to work \n\nBetancourt – H108549 \n3 \n \nwith no restrictions.  He is currently working.  He received an 8% PPD rating which was \npaid.  The 8% PPD rating should have been 2% per the AMA Guide.  He is not entitled to \nadditional benefits.  \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 witnesses and to observe their demeanor, the following findings of \nfact and 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 August 19, 2024 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 is entitled to additional medical treatment in the form of surgery as recommended \nby Dr. Randolph. \n 3.      Claimant  is  not  entitled  to  payment  of  additional  temporary  total  disability \nbenefits at this time. \n 4.   Claimant’s impairment rating attributable to his compensable injury equals 2% \nto the body as a whole.  Respondent is entitled to a credit for permanent partial disability \nbenefits paid in excess of that 2% impairment rating. \n \n FACTUAL BACKGROUND \n Claimant   is   a   36-year-old   man   who   performed   construction   work   for   the \nrespondent.  Claimant has a history of non-work related back problems that resulted in \n\nBetancourt – H108549 \n \n4 \n \nsurgery at the L5-S1 level in 2014.  Claimant testified that after approximately a years’ \nrecovery he returned to work performing his regular activities which included heavy lifting.   \n The parties have stipulated that claimant suffered a compensable injury to his low \nback on September 14, 2021.  After some conservative treatment claimant underwent a \n“revision left L5-S1 micro decompression” by Dr. Gannon Randolph in April 2022.  (See \nGannon report of May 14, 2024.) \n Following  that  surgery  Dr.  Gannon  released  claimant  to  return  to  work  without \nrestrictions on July 19, 2022.  At some point respondent paid claimant permanent partial \ndisability benefits based on an 8% impairment rating to the body as a whole. \n Claimant  testified  that  he  returned  to  work  for  respondent  and  performed  his \nregular job duties despite continuing to have low back pain.  Also at some point claimant \nchanged jobs to work as an electrician which he testified was lighter duty because it did \nnot require heavy lifting. \n Claimant sought additional medical treatment for his low back complaints and was \neventually referred by respondent to Dr. Jared Seale.  Dr. Seale recommended a fusion \nprocedure for a recurrent disc protrusion at the L5-S1 level.  Claimant was subsequently \nevaluated by Dr. Randolph who in a report dated May 14, 2024 also agreed that claimant \nwas in need of a fusion procedure.   \n Claimant  has  filed  this  claim  contending  that  he  is  entitled  to  additional  medical \ntreatment in the form of surgery as recommended by Dr. Randolph.  He also requested \ntemporary total disability benefits as a result of the surgery and a controverted attorney \nfee.  In addition, as previously noted, respondent has raised as an issue claimant’s correct \nimpairment rating as a result of his September 14, 2021 injury. \n\nBetancourt – H108549 \n \n5 \n \nADJUDICATION \n Claimant contends that he is entitled to additional medical treatment in the form of \nfusion surgery as recommended by his treating physician, Dr. Randolph.  Claimant has \nthe  burden  of  proving  by  a  preponderance  of  the  evidence  that  medical  treatment  is \nreasonable and necessary.  Stone v. Dollar General Stores, 91 Ark. App. 260, 209 S.W. \n3d 445 (2005).  What constitutes reasonably necessary medical treatment is a question \nof fact for the Commission.  Wright Contracting Company v. Randall, 12 Ark. App. 358, \n676 S.W. 2d 750 (1984).    \n As previously noted, claimant was sent for an evaluation by Dr. Seale on October \n4, 2023.  Dr. Seale noted that claimant had a work-related injury in September 2021 that \nhad resulted in a recurrent disc protrusion on the left at L5-S1 level and that he underwent \na subsequent revision decompression procedure on April 6, 2022.  He further noted that \nclaimant had some improvement of his pain, but had continued to have persistent pain in \nhis left buttocks and leg.  He also noted that claimant had a remote history of a non-work \nrelated injury approximately ten years ago.  Dr. Seale did not believe further injections \nwould benefit the claimant, but instead recommended that claimant undergo another MRI \nscan and determine whether he had an active nerve compression on the left side.   \n Following that MRI scan Dr. Seale in a report dated November 8, 2023 stated that \nthe  MRI  scan  revealed  a  recurrent  disc  protrusion  causing  moderate  to  severe \ncompression at the S1 nerve root.  Dr. Seale went on to recommend a fusion procedure \nand indicated that claimant’s condition was related to his work injury. \n  The patient’s MRI does reveal a disc protrusion.  This is an \n  objective finding of injury that matches the patient’s \n  subjective complaints of symptoms.  The patient’s \n\nBetancourt – H108549 \n \n6 \n \n  symptoms began on and after the work injury.  The \n  patient has no history of pain in the low back or \n  down the leg prior to the work injury.  Therefore, it \n  is within a certain degree of medical certainty that \n  at least 51% of the patient’s current symptoms and \n  need for fusion are directly related to their work \n  injury. \n \n \n Claimant  subsequently  returned  for  an  evaluation  by  Dr.  Randolph  on  May  14, \n2024.  In his report, Dr. Randolph stated: \n  He had a revision left L5-S1 micro decompression \n  in April 2022, but unfortunately his leg pain never \n  completely resolved and has increased over the \n  past year.  He continues to be significantly bothered \n  by his back and leg pain despite 2 surgeries and \n  physical therapy.  He had a surgical consultation \n  with Dr. Seale in Little Rock who did offer a L5-S1 \n  fusion, but it looks like this may have been denied? \n \n \n Dr. Randolph then went on to also recommend a fusion procedure. \n  At this point really the only option is a fusion procedure \n  of the affected disc.  Therefore, I have recommended \n  L5-S1 ALIF with MIS psif. \n \n \n The record does not contain any evidence that the claimant has suffered a new \ninjury  since  September  14,  2021.    Based  upon  the  opinions  of  Dr.  Seale  and  Dr. \nRandolph, which I find to be credible and entitled to great weight, I find that claimant has \nmet  his  burden  of  proving  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nadditional medical treatment in the form of surgery as recommended by Dr. Randolph.  \n Although claimant initially raised temporary total disability benefits as a result of \nthe surgery as an issue, I do note that claimant acknowledged at the hearing that he is \ncurrently  working  and  he  is  not  claiming  entitlement  to  any  temporary  total  disability \n\nBetancourt – H108549 \n \n7 \n \nbenefits  at  this  point.    Accordingly,  no  temporary  total  disability  benefits  are  being \nawarded. \n The final issue for consideration involves claimant’s impairment rating.  The parties \nhave stipulated that respondent paid permanent partial disability benefits based on an 8% \nimpairment rating to the body as a whole.  It is not known exactly when this impairment \nrating  was  made;  however,  the  respondent  introduced  into  evidence  an  impairment \nevaluation  summary  dated  June  24,  2024,  from  the  Functional  Testing  Centers,  Inc., \nwhich  based  on  the AMA  Guides  Fourth  Edition assigned  claimant  an  8%  impairment \nrating to the body as a whole for a surgically treated disc lesion without residual signs or \nsymptoms pursuant to Table 75 of the AMA Guides.  However, claimant’s surgery in April \n2022  was  the  second  surgical  procedure  on  his  lumbar  disc  according  to  the  medical \nrecords, not the first.  Therefore, claimant’s first surgical procedure in 2014 would have \nresulted in an 8% impairment rating to the body as a whole.  According to Table 75, a \nsecond  operation  adds  an  additional  2%  impairment  rating  to  the  lumbar  spine.  \nAccordingly, while claimant had an 8% rating as a result of his non-work related injury in \n2014, the surgery in April 2022 resulted in only an additional 2% impairment pursuant to \nthe AMA  Guides.    Therefore,  respondent  is  entitled  to  a credit  for  permanent  partial \ndisability benefits paid in excess of the 2% impairment rating.  Obviously, if claimant does \nproceed  to  undergo  additional  surgery,  he  may  be  entitled  to  additional  permanent \nimpairment as a result of the third surgical procedure.  However, that is not an issue at \nthis time. \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \n\nBetancourt – H108549 \n \n8 \n \nhe is entitled to additional medical treatment in the form of surgery as recommended by \nDr.  Randolph.    Claimant  has  continued  to  work  and  is  not  requesting  temporary  total \ndisability  benefits  at  this  time.    Claimant’s  permanent  physical  impairment  rating  as  a \nresult  of  his  compensable  injury  on  September  14,  2021 is  2%  pursuant  to  the AMA \nGuides.  Respondent is entitled to a credit for any benefits paid in excess of this amount. \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 \nindemnity benefits were controverted and awarded; therefore, no attorney fee has been \nawarded.   Instead, claimant’s attorney is free to voluntarily contract with the medical \nproviders pursuant to A.C.A. §11-9-715(a)(4). \nRespondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $438.95.  \nIT IS SO ORDERED. \n \n     _____________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H108549 JOSE BETANCOURT, Employee CLAIMANT BHI ENERGY, INC., Employer RESPONDENT STARR INDEMNITY/SEDGWICK, Carrier/TPA RESPONDENT OPINION FILED OCTOBER 21, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Ark...","fetched_at":"2026-05-19T22:47:49.788Z","links":{"html":"/opinions/alj-H108549-2024-10-21","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/BETANCOURT_JOSE_H108549_20241021.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}