{"id":"alj-H109307-2023-08-29","awcc_number":"H109307","decision_date":"2023-08-29","opinion_type":"alj","claimant_name":"Carlos Martin","employer_name":"Bekaert Corp","title":"MARTIN VS. BEKAERT CORP. AWCC# H109307 NUNC PRO TUNC FILED AUGUST 29, 2023","outcome":"denied","outcome_keywords":["granted:1","denied:2"],"injury_keywords":["shoulder","neck","back","cervical","repetitive"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/MARTIN_CARLOS_H109307_20230829.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MARTIN_CARLOS_H109307_20230829.pdf","text_length":30978,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H109307 \n \nCARLOS MARTIN, Employee CLAIMANT \n \nBEKAERT CORP., Employer RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED AUGUST 29, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by DAVID C. JONES, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  June  1,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on April 10, 2023, and a Pre-hearing Order \nwas filed on April 11, 2023.   A copy of the Pre-hearing Order has been  marked Commission's \nExhibit 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   of   employee-employer-carrier   existed   between   the   parties   on \nSeptember 13, 2020. \n 3. The claimant sustained a compensable injury to his right shoulder and neck on or about \nSeptember 13, 2020. \n\nMartin – H109307 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $711.00 for temporary total disability benefits and $533.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant is entitled to additional medical treatment for his compensable neck \ninjury, including injections by Dr. Maryanov. \n 2.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  October  31, \n2022, to a date yet to be determined. \n 3. Whether Claimant’s attorney is entitled to attorney fee. \n Claimant’s contentions are: \n“a. The Claimant contends that since he returned to active medical \ntreatment as of October 31, 2022, and is currently not working, he \nis  entitled  to  temporary  total  disability  benefits  from  October  31, \n2022, until a date yet to be determined.  \n \nb.  The  Claimant  contends  that  Dr.  Maryanov  is  his  authorized \ntreating   physician   and   that   therefore   treatment   by   or   at   the \ndirection  of  Dr.  Maryanov  is  reasonably  necessary  treatment  and \nshould be the liability of the respondents. Said treatment includes, \nbut is not necessarily limited to, injections. \n \nc.   The   Claimant   contends   that   Dr.   Maryanov   recommended \nsurgery   on   May   3,   2022;   however,   respondents   refused   to \nauthorize   said   surgery   and   instead   sent   the   claimant   to   Dr. \nRandolph Gannon, who eventually performed surgery. \n \nd.  The  Claimant  contends  that  there  is  no  evidence  to  support  a \nconclusion  that  he  would  have  ever  been  able  to  get  surgery \nauthorized if he had not hired an attorney and his attorney filed Pre \nHearing    Questionnaire,    all    disability    benefits    have    been \ncontroverted and an appropriate attorney’s fee should be awarded.” \n \n Respondents’ contentions are: \n \n\nMartin – H109307 \n \n-3- \n“1.  The  Respondents  contend  that  they  previously  accepted  the \nClaimant’s  shoulder  and  neck  injuries  as  compensable,  and  all \nappropriate  benefits  have  been  paid  to  date.  In  that  regard,  the \nRespondents  provided  the  Claimant  with  light-duty  work  until  he \nunderwent  surgery  at  the  direction  of  Dr.  Gannon  on  February  2, \n2022. \n \n2. The Respondents contend that the Claimant was paid temporary \ntotal disability benefits until he was released to return to work in a \nlight-duty capacity. \n \n3.  The  Respondents  contend  that  the  Claimant  was  released  to \nreturn to work in a regular-duty capacity without any restrictions as \nof June 2, 2022. \n \n4.  The  Respondents  would  note  that  the  Claimant’s  employment \nwith  the  Respondent/Employer  ended  on or  about  July  29,  2022, \nfor reasons unrelated to the claim filed herein. \n \n5.  The  Respondents  contend  that  the  Claimant  was  placed  at \nmaximum  improvement  as  of  on  or  about  August  25,  2022,  and \nsubsequently  assigned  an  8%  permanent  impairment  rating  to  the \nbody as a whole, which has been accepted and is being paid out at \nthis point. \n \n6.  The  Respondents  would  note  that the  Claimant  underwent  a \nFunctional  Capacity  Evaluation  on  September  28,  2022,  which \nindicated    that    the    Claimant    had    permanent    medium-duty \nrestrictions. \n \n7. The Respondents contend that the Claimant is not entitled to any \nadditional  temporary  total  disability  benefits  as  he  was  originally \nreleased  to  return  to  work  in  a  regular-duty  capacity  on  June  2, \n2022, and was once again placed at maximum improvement on or \nabout  August  25,  2022,  and  his  permanent  restrictions  have  been \nassigned.  Accordingly,  the  Claimant  has  reached  the  end  of  his \n‘healing  period’  and  is  not  entitled  to  any  additional  temporary \ntotal disability benefits. \n \n8.  The  Respondents  contend  that,  as  the  Claimant  has  reached \nMMI,  his  impairment  rating  has  been  assigned  and  his  permanent \nrestrictions  have  been  assigned,  the  claim  is  ripe  for  wage-loss \nconsideration  if  the  Claimant  contends  he  is  entitled  to  wage  loss \ndisability benefits. \n \n\nMartin – H109307 \n \n-4- \n9.  The  Respondents  contend  that  they  would  be  entitled  to  a \nstatutory  offset  for  the  unemployment  benefits  previously  paid  to \nthe  Claimant.  Furthermore,  the  Respondents  contend  that  they \nwould  be  entitled  to  an  offset  for  any  other  types  of  group  health \ncarrier,  disability  carrier  or  other  collateral  benefits  paid  to  or  on \nbehalf of the Claimant. \n \n10.   The   Respondents   would   reserve   the   right   to   amend   and \nsupplement  their  contentions  after  the  supplemental  discovery  has \nbeen completed.” \n \n The claimant in this matter is a 34-year-old male who sustained compensable injuries to \nhis  right  shoulder  and  neck  on  September  13,  2020.  On  direct  examination,  the  claimant \ndescribed the incident in which he sustained compensable injuries to his right shoulder and neck \nas follows: \nQ Mr.  Martin,  it  has  been  agreed  upon  that  you  sustained \ninjuries while in the employment of Bekaert back in September of \n2020, but I would like for you  just to briefly explain how you  got \ninjured. \n \nA So I was running a machine and I pushed out a reel that had \nbroke  and  strung  it  back  up  and  I  was  rolling  the  bobbins  back \ninside and I reached up from my crane, I had a pop in my neck and \nthe pain that shot down my arm. \n \nQ And did you report that? \n \nA Yes, sir. \n \nQ Were you sent somewhere to receive medical treatment? \n \nA Yes, sir. \n \n In the present matter the claimant has asked the Commission to determine if he is entitled \nto  additional  medical  treatment  for  his  compensable  neck  injury.  The  claimant  was  initially \ntreated  with  conservative  care  for  both  his  right  shoulder  and  neck.  The  conservative  treatment \nprovided to the claimant did not alleviate the claimant’s symptoms. \n\nMartin – H109307 \n \n-5- \n On December 29, 2020, the claimant underwent an MRI without contrast of the cervical \nspine. That diagnostic report was authored by Dr. Leo Drolshagen.  Following is the impression \nsection of that report: \nIMPRESSION \n1. Moderate right paracentral lateral disc protrusion C6-7 indenting \nthe subarachnoid space and cord. \n2. Small to moderate central protrusion and spurring at C3-4. \n3. Facet arthropathy as described. \n \n On  May  3,  2021,  the  claimant  was  seen  by  Dr.  Maryanov.  During  that  visit,  Dr. \nMaryanov  recommended  surgical  intervention  for  the  claimant’s  cervical  spine.  Following  is  a \nportion of that medical record: \nWe administered Neck Disability Index to evaluate the impact that \npatient’s  neck  and  upper  extremity  dysfunction  has   on   their \nfunctional   abilities.   Patient   scored   22,   with   all   10   questions \nanswered,  thus  indicating  44%  functional  disability  due  to  neck \nand upper extremity dysfunction. We will use this score as baseline \nto evaluate efficacy of subsequent treatments. Patient reports worse \npain  since  last  visit  post  Yoga  session.  As  we  have  exhausted  all \nother less invasive treatments, we will schedule patient for cervical \ndisc  replacement  with  Mobi-c  device  on  the  June  surgery  day  at \nPTCOA/ISC.  We  will  order  Flex/EX  cervical  XR  upon  approval \nfor procedure to be performed here in the clinic at the preoperative \nvisit.  I  think  this  is  appropriate  treatment  for  patient  as  we  have \nexhausted conservative care for this problem for him with physical \ntherapy  exercise  regimen,  behavioral  therapy,  anti-inflammatory \nmedications   and   interventional   procedures.   I   explained   the \ndifference  between  the  cervical  disc  replacement  and  acdf  fusion, \nwith disc replacement being favorable profile long term with much \nless risk of developing adjacent level disease and shorter recovery \nand come back to work quicker. \n \n The  claimant  underwent  another  MRI  at  MANA  Imaging  Associates  of  NWA  on \nNovember  11,  2021.  Following  are  the  impressions  from  that  MRI  as  recorded  by  Dr.  Vanessa \nBrunch: \nIMPRESSION: \n\nMartin – H109307 \n \n-6- \nMultilevel  cervical  spondylosis,  worst  at  the  C6-7  level  where \nthere  is  moderate  canal  stenosis  and  severe  bilateral  foraminal \nstenosis. \n \n On  December  7,  2021,  the  claimant  was  seen  by  Dr.  Gannon  Randolph  at  Ozark \nOrthopedics.  Dr.  Randolph  also  recommended  surgical  intervention  for  the  claimant’s  cervical \nspine.  However,  Dr.  Randolph  recommended  a  different  form  of  surgical  intervention  than  Dr. \nMaryanov. Following is a portion of the claimant’s medical record from that visit: \nCarlos  is  a  pleasant  33-year-old  he  had  an  on-the-job  injury \n9/13/2020 he works for Bekaert. He thinks he was either moving a \ngiant 3 ton spool of wire around or loading it in his machine when \nhe  felt  a  pop  in  his  neck  and  has  had  subsequently  right  C7 \nradicular features since that time. He has been through a full gamut \nof   conservative   measures   including   epidural   steroid   injection, \nphysical therapy, time, NSAIDs. \n \n*** \nAssessment/Plan \nAP  lateral  and  open-mouth  odontoid  views  of  the  cervical  spine \ntaken  for  surgical  evaluation  12/7/2021  demonstrate  moderate \ndegenerative  disc  disease  at  the  C6-7  level.  Otherwise  normal \nalignment of the spine. \n \nMRI at Manna dated 11/11/2021 demonstrates C6-7 HNP with by \nforaminal  right  greater  than  left  C7  compression.  No  high-grade \ncentral  canal  stenosis  or  cord  signal  change.  There  is  some  slight \nprogression of these from his previous MRI 12/29/2020. \n \nAssessment plan: \nIn my hands Carlos being a very active young person with a highly \nphysical job I think a ACDF C6-7 makes better sense that for him \nthan a TDA the procedure alternatives risk potential complications \nwere explained patient in detail today. He really has exhausted his \noptions conservatively. He is going to mull it over and decide what \nhe wants to do. I am happy to have him call and schedule this if he \nwants to. \n \n On February 2, 2022, the claimant underwent the surgical intervention as recommended \nby  and  performed  at  the  hands  of  Dr.  Randolph.  The  surgery  included  an  anterior  cervical \n\nMartin – H109307 \n \n-7- \ndiscectomy and fusion, decompression of the spinal cord and bilateral neural elements. Also, an \nanterior  plate  fixation,  C6-C7,  with  interbody  cage  placement  at  C6-C7  and  interoperative \nneuromonitoring.  \n On   May   27,   2022,   the   claimant   underwent   a   nerve   conduction   study   at   Ozark \nOrthopedics  performed  by  Dr.  Mark  Miedema  at  the  recommendation  of  Dr.  Randolph. \nFollowing is a portion from that diagnostic testing report. \nNCV FINDINGS: \n*  All  nerve  conduction  studies  (as  indicated  in  the  preceding \ntables) were within normal limits. \n* All left vs. right side differences were within normal limits. \n \nEMG FINDINGS: \n*  All  examined  muscle  (as  indicated  in  the  preceding  table) \nshowed no evidence of electrical instability. \n \n1. Normal electrodiagnostic examination. \n2.   There   is   no   electrodiagnostic   evidence   of   carpal   tunnel \nsyndrome,  cubital  tunnel  syndrome  or  a  generalized  peripheral \nneuropathy  in  the  right  or  left  upper  limb  of  the  nerves  that  were \ntested. \n3. There is no electrodiagnostic evidence of a right or left cervical \nradiculopathy   of   the   muscles   that   were   tested,   including   the \ncervical paraspinals. \n4. Of note, EMG is not a sensitive study and also does not evaluate \nsmall  sensory  pain  fibers.  Thus  a  lack  of  active  denervation  does \nnot exclude an active radiculopathy. Clinical correlation is needed \nto determine the significance of the findings on the EMG and NCS \nwith  today’s  study.  I  encourage  him  to  follow-up   with   Dr. \nRandolph. \n \n On  June  2,  2022,  the  claimant  again  saw  Dr.  Randolph.  At  that  time,  the  claimant \nremained under the care of Dr. Randolph but was released to full duty. Following is a portion of \nthat medical record: \nAssessment/Plan \nEMG  dated  5/24/2022  demonstrated  normal  EMG  bilateral  upper \nextremities. \n\nMartin – H109307 \n \n-8- \n \nAssessment plan: \nThere  is  no  clinically  evident  process  why  Carlos  still  having \nsymptomology  he  has  excellent  looking  radiographic  studies.  He \nhas a normal EMG. I have recommended work hardening program \nand return to full duty without restrictions. I will see him back in 3 \nmonths. \n \n On  August  25,  2022,  the  claimant  was  again  seen  by  Dr.  Randolph  who  released  the \nclaimant  to  be seen  on  an  as  needed  basis  and  found  the  claimant  at  maximum  medical \nimprovement. The  claimant was also  recommended  to undergo  a functional capacity evaluation \n(FCE). Following is a portion of that medical record: \nAssessment/Plan \nAP   lateral   cervical   spine   series   taken   clinic   today   8/25/2022 \ndemonstrate   excellent   bony   consolidation   through   the   ACDF \nconstruct.  No  evidence  of  adjacent  segment  degeneration.  Normal \nalignment of the spine. \n \nAssessment plan: \nHealed C6-7 ACDF. Patient still is having some symptomatology. \nWe  evaluated  with  EMG  and  MRI  scan  both  of  which  were \nnegative. Therefore I think he is at MMI and recommend FCE and \nimpairment rating. I will see him back on a as needed basis.  \n \n Approximately two weeks after being released by Dr. Randolph and placed at MMI, the \nclaimant filed a request with the Commission on September 9, 2022, for a Change of Physician. \nIt should be understood that the medical records  continue to report the claimant’s assertion that \nhe continued to have neck pain.  \n On September 28, 2022, the claimant underwent a functional capacity evaluation and also \nan  anatomical  impairment  rating  with  Functional  Testing  Centers,  Inc.  According  to  the  FCE \nreport,  the  claimant’s “evaluation  indicated  that  a  reliable  effort  was  put  forth,  with  50  of  53 \nconsistency  measures  within  expected  limits.”  Following  are  portions  of  the  claimant’s  FCE \nreport which found him to have the ability to work in the medium classification. \n\nMartin – H109307 \n \n-9- \nFUNCTIONAL ABILITIES \nMr.  Martin  demonstrated  the  ability  to  perform  material  handling \nat  the  following  levels  during  this  functional  capacity  evaluation. \nMr.  Martin  demonstrated  an  occasional  bi-manual  lift/carry  of  up \nto   40   Lbs.   He   also   demonstrated   the   ability   to   perform \nlifting/carrying  of  up  to  20  Lbs.  on  a  Frequent  basis.  Mr.  Martin \nalso demonstrated an occasional RUE lift of 25 lbs. and a LUE lift \nof 20 lbs. when lifting unilaterally from knuckle to shoulder level. \n \n*** \nFUNCTIONAL LIMITATIONS \nMr.    Martin    demonstrated    functional    limitations    during    his \nevaluation  in  the  area  of  material  handling  as  he  exhibited  the \nability to perform on an Occasional bi-manual lift/carry of up to 40 \nlbs.  He  also  demonstrated  limitations  with  unilateral  lifting  as  he \nexhibited  a  maximal  RUE  lift  of  25  lbs.  as  compared  to  20  lbs. \nwith the LUE when lifting unilaterally from floor to shoulder level. \nHe   demonstrated   poor   tolerance   to   repetitive   and   sustained \nstooping   and   performed   these   activities   at   the   Occasional \nfrequency   level.   He   performed   all   other   activities   at   a   level \nconsistent with that of an average worker. \n \nCONCLUSIONS \nMr.  Martin  completed  functional  testing  on  this  date  with  reliable \nresults. \n \nOverall,  Mr.  Martin  demonstrated  the  ability  to  perform  work  in \nthe MEDIUM classification of work as defined by the US Dept. of \nLabor’s  guidelines  over  the  course  of  a  normal  8 hour  workday \nwith limitations as noted above. \n \n The claimant’s testing on September 28, 2022, also included evaluation for a permanent \nimpairment   rating   regarding   his   cervical   spine.   It   was   determined   by   Casey   Garretson, \noccupational  therapist  with  Functional  Testing  Centers,  Inc.,  that  the  claimant’s  cervical  spine \ninjury provided an 8% impairment rating to the body as a whole. Following is a portion of that \nreport: \nImpairment Rating Report \nUsing  the  AMA  Guidelines  Fourth  Edition,  Table  75  (p.  113), \nWhole-person    Impairment    Percents    Due    to    Specific    Spine \n\nMartin – H109307 \n \n-10- \nDisorders:  In  Mr.  Martin’s  case,  he  does  qualify  for  impairment \nbased on the following: \n \nUsing   the   AMA   Guidelines   Fourth   Edition,   Whole-person \nImpairment  Percents  Due  to  Specific  Spine  Disorders,  Page  113, \nTable  75,  Mr.  Martin  would  have  an  impairment  to  the  cervical \nspine based on: \n \nSection   IV.   D.   Single   level   spinal   fusion   with   or   without \ndecompression without residual signs or symptoms. This correlates \nto his documented cervical fusion surgery at C6-C7, which results \nin an 8% Whole Person Impairment. \n \n Sometime  after  the  claimant’s  FCE  and  impairment  evaluation  at  Functional  Testing \nCenters,  Inc.,  Dr.  Randolph  issued  an  addendum  to  the  claimant’s  August  25,  2022,  medical \nrecord. That amendment follows: \nThis  is  an  addendum  to  the  patient’s  previous  visit  8/25/2022.  I \nreceived  FCE  dated  9/28/2022  reviewed  these  documents  the \nphysical    demand    characteristics    of    work    for    Mr.    Martin \ndemonstrate the ability to work in a medium classification work as \ndefined  by  the  US  Department  of  Labor’s  guidelines  over  the \ncourse of a normal 8-hour workday per the AMA guidelines fourth \nedition patient’s whole person impairment is 8%. \n \n On October 21, 2022, the Commission issued a Change of Physician Order in response to \nthe  claimant’s  September  9,  2022,  request  for  a  Change  of  Physician.  That  order  changed  the \nclaimant’s physician from Dr. Randolph to Dr. Maryanov, whom the claimant had seen prior to \nDr. Randolph. \n On  October  31,  2022,  the  claimant,  who  continued  to  complain  of  cervical  pain  and \ndifficulties, was again seen by Dr. Maryanov. Following is a portion of that medical record. \nWe administered Neck Disability Index to evaluate the impact that \npatient’s  neck  and  upper  extremity  dysfunction  has  on  their \nfunctional   abilities.   Patient   scored   24,   with   all   10   questions \nanswered,  thus  indicating  48%  functional  disability  due  to  neck \nand upper extremity dysfunction. We will use this score as baseline \nto  evaluate  efficacy  of  subsequent  treatments.  Patient  had  ACDF \n\nMartin – H109307 \n \n-11- \nsurgery  in  February  2022.  This  resolved  problems  on  right  side \nhowever,  during  Work  Hardening  PT,  he  begain  having  pain  on \nleft  side.  We  performed  sudomotor  testing  due  to  inability  to \ncompletely  understand  and  explain  patient’s  multiple  sensory \ndysesthesias, in presence of elevated blood pressure, with concern \nfor  peripheral  neuropathy,  autonomic  dysfunction,  and  vascular \ninsufficiency. \n \n*** \nWe  performed  cervical  spine  Xray,  see  report.  My  impression  is \nthat  patient  is  having  problems  with  neuritis  or  left  c6  nerve  root, \nrelated  to  physical  activity  exacerbation  in  setting  of  exceeding \nposteriorly  placed  interbody  device.  I  suggested  to  help  with  left \ncervical 6/7 transforaminal epidural steroid injections to help. He is \nalso  having  neck  pain  radiating  up  into  the  occiput.  This  is  likely \nrelated  to  increased  spondylosis  at  c3/4  level  I  suspect  with  these \nnew xrays. This may be due to adjacent level disease due to fusion \nsurgery he had. I recommend evaluating further with MRI cervical \nspine.  I  recommended  activity  restriction  no  lifting  over  20  lbs. \nFollow up in two weeks for procedure. \n \n On November 22, 2022, the claimant was again seen by Dr. Maryanov. At that time, and \nat least up until the time of the hearing in this matter, the claimant had not received the epidural \nsteroid injections recommended by Dr. Maryanov during the claimant’s October 31, 2022, visit. \nFollowing is a portion of the claimant’s November 22, 2022, visit with Dr. Maryanov: \nAssessment: \nPatient  is  32  y/o  mail  referred  to  our  clinic  for  evaluation  and \ntreatment  of  bilateral  shoulder  pain  and  bilateral  upper  extremity \npain  subsequent  to  a  work-related  incident,  when  in  2020  he \nreached  up  to  grab  a  controller  of  the  crane  right  after  pushing  a \nheavy  metal  reel  weighing  over  multiple  hundreds  of  kilograms. \nPatient  had  a  repeat  injury  in  July  2022  when  put  into  a  work \nhardening  program  and  exposed  to  lifting  weights  over  100  lbs. \nwhich  is  significantly  higher  than  his  disability  rating  of  no  more \nthan 40 lbs. \n \n*** \nWe administered Neck Disability Index to evaluate the impact that \npatient’s  neck  and  upper  extremity  dysfunction  has  on  their \nfunctional   abilities.   Patient   scored   25,   with   all   10   questions \nanswered,  thus  indicating  a  50%  functional  disability  due  to  neck \n\nMartin – H109307 \n \n-12- \nand upper extremity dysfunction. We will use this score as baseline \nto evaluate efficacy of subsequent treatments. We discussed patient \ndisability  index  that  was  determined  by  his  surgeon  which  is  8% \nwith  40  lb.  lifting  restriction.  In  my  opinion  this  is  an  appropriate \ndetermination.  We  advised  patient  he  needs  to  evaluate  his  life \nmoving  forward  and  what  he  wants  to  do.  We  will  continue  to \nwork with adjuster to get procedure approved. \n \n The first question before the Commission is whether the claimant is entitled to additional \nmedical  treatment  for  his  compensable  neck  injury,  including  injections  by  Dr.  Maryanov.  It  is \nclear  from  the  medical  records  introduced  into  evidence  that  the  claimant  still  reported  neck \ndifficulties after his surgical intervention. In the claimant’s August 25, 2022, medical record with \nDr. Randolph the claimant complained of pain at the level of seven out of 10, with 10 being the \nworst pain. During that visit Dr. Randolph found the claimant at maximum medical improvement \nand  ordered  an  FCE.  The  claimant  quickly  thereafter  requested  a  Change  of  Physician  on \nSeptember 9, 2022.  \n Dr. Maryanov, who saw the claimant on October 31, 2022, ten days after the Commission \nordered the Change of Physician, gave a detailed explanation of why he believed the claimant’s \npain  continued  and  recommended  epidural  steroid  injections  and  a  new  MRI  as  treatment  and \ndiagnostics, stating “My impression is that patient is having problems with neuritis of the left C6 \nnerve  root,  related  to  physical  activity  exacerbation  in  setting  of  exceeding  posterior  placed \ninterbody  device.  I  suggest  to  help  with  left  cervical  6-7  transforaminal  epidural  steroid \ninjections  to  help.  He  is  also  having  pain  radiating  up  into  the  occiput.  This  is  likely  related  to \nincreased spondylosis at C3-4 level I suspect with these new xrays. This may be due to adjacent \nlevel  disease  due  to  fusion  surgery  he  had.  I  recommend  evaluating  further  with  MRI  cervical \nspine.  I  recommend  activity  restrictions  no  lifting  over  20  lbs.  Follow  up  in  two  weeks  for \nprocedure.”  \n\nMartin – H109307 \n \n-13- \n Both Dr. Maryanov  and  Dr. Randolph offered the  claimant surgery, but each  a different \nmethod of surgery regarding his cervical spine difficulties. The claimant chose Dr. Randolph. Dr. \nMaryanov  believes  that  positioning  of  the  interbody  device  from  that  surgery  by  Dr.  Randolph \ncontinues  to  cause  the  claimant  difficulties.  It  appears  Dr.  Maryanov  believes  that  the  epidural \nsteroid injections will provide the claimant relief. The treatment recommended by Dr. Maryanov \nin  both  his  October  31,  2022,  and  November  22,  2022,  reports  of  the  claimant’s  visits  are \nreasonably necessary treatment for the claimant’s compensable neck injury, but do appear to be \nin  the  form  of  maintenance  to  relieve  symptoms  as  a  result  of  his  injury  and  the  surgery  he \nunderwent.  They  do  not  appear  to  be  necessarily  corrective  in  nature.  Put  more  clearly,  they \nappear  to  be  treatment  to  bring  the  claimant’s  symptoms  closer  to  a  baseline  of  his  pre-injury \nstatus  than  to  correct  the  underlying  problem.  However,  Dr.  Maryanov’s  recommendations  are \nreasonably necessary treatment for the claimant’s compensable neck injury. \n The claimant has asked the Commission to determine whether he is entitled to temporary \ntotal disability benefits from October 31, 2022, to a date yet to be determined. The claimant was \nfound  at  maximum  medical  improvement  by  Dr.  Randolph  on  August  25,  2022,  after  having \nbeen released to full duty without restrictions by Dr. Randolph on June 2, 2022. The claimant did \nbegin  work  at  that  time.  However,  the  claimant’s  employment  with  the  respondent  ended \nsometime after he was released to return to work at full duty by Dr. Randolph on June 2, 2022. \nThe claimant was still under care from Dr. Randolph when his employment ended. Apparently, a \nconfidentiality  agreement  was  reached  between  the  claimant  and  the  respondent.  As  such,  the \nCommission  has  little  to  no  information  about  the  claimant’s  end  of  employment  with  the \nrespondent.  \n\nMartin – H109307 \n \n-14- \n I find that the claimant was at maximum medical improvement on August 25, 2022, when \nDr.   Randolph   declared   as   much.   However,   I   believe   the   claimant   was   still   in   need   of \nmaintenance  type  treatment  for  his  long-term  symptoms  that  are  a  result  of  his  8%  whole  body \nimpairment  rating  determined  by  Functional  Testing  Centers,  Inc.  and  agreed  with  by  both  Dr. \nRandolph  and  Dr.  Maryanov.  Since  the  claimant  reached  maximum  medical  improvement  on \nAugust  25,  2022,  he  must  reenter  his  healing  period  to  be  entitled  to  temporary  total  disability \nbenefits  and  he  has  not  done  so.  I  recognize  that at  the  claimant’s  October  31,  2022,  visit  with \nDr. Maryanov, the claimant was placed on activity restrictions of “no lifting over 20 lbs.,” which \nis a greater restriction than the 40 lb. restriction placed on the claimant by his FCE and agreed to \nby  Dr.  Randolph.  However,  the  40  lb.  restriction  was  placed  on  the  claimant  at  his  FCE  on \nSeptember  28,  2022,  before  Dr.  Maryanov’s  20  lb.  restriction.  In  the  report  following  the \nclaimant’s  November  22,  2022,  visit  with  Dr.  Maryanov,  it  is  stated, “We  discussed  patient \ndisability index that was determined by his surgeon which is 8% with 40 lb. lifting restriction. In \nmy opinion this is an appropriate determination. We advised patient he needs to evaluate his life \nmoving  forward  and  what  he  wants  to  do.  We  will  continue  to  work  with  adjuster  to  get \nprocedure approved.”  The claimant has  failed  to  prove by a preponderance of the evidence that \nhe  is  entitled  to  temporary  total  disability  benefits  from  October  31,  2022,  to  a  date  yet  to \ndetermined. \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 \n\nMartin – H109307 \n \n-15- \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nApril 10, 2023, and contained in a Pre-hearing Order filed April 11, 2023, are hereby accepted as \nfact. \n 2.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he is  entitled  to \nadditional  medical  treatment  for  his  compensable  neck  injury,  including  injections  by  Dr. \nMaryanov  and  treatment  as  recommended  by  Dr.  Maryanov  set  forth  in  the  claimant’s  October \n31, 2022, and November 22, 2022, visits. \n 3. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto temporary total disability benefits from October 31, 2022, to a date yet to be determined. \n 4. The claimant has failed to prove that his attorney is entitled to an attorney’s fee in this \nmatter. \n ORDER \nThe respondents shall be responsible for the payment of the reasonably necessary medical \ntreatment including injections and treatment as recommended by Dr. Maryanov in the claimant’s \nOctober 31, 2022, and November 22, 2022, visits. \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       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H109307 CARLOS MARTIN, Employee CLAIMANT BEKAERT CORP., Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier RESPONDENT OPINION FILED AUGUST 29, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claimant r...","fetched_at":"2026-05-19T23:04:28.851Z","links":{"html":"/opinions/alj-H109307-2023-08-29","pdf":"https://labor.arkansas.gov/wp-content/uploads/MARTIN_CARLOS_H109307_20230829.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}