{"id":"alj-H109839-2023-04-05","awcc_number":"H109839","decision_date":"2023-04-05","opinion_type":"alj","claimant_name":"Nancy Holman","employer_name":"Walmart Associates, Inc","title":"HOLMAN VS. WALMART ASSOCIATES, INC. AWCC# H109839 APRIL 5, 2023","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["back","herniated","thoracic","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/HOLMAN_NANCY_H109839_20230405.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOLMAN_NANCY_H109839_20230405.pdf","text_length":17847,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H109839 \n \nNANCY HOLMAN, Employee                                                                         CLAIMANT \n \nWALMART ASSOCIATES, INC., Employer                                             RESPONDENT                         \n \nWALMART CLAIMS SERVICES, Carrier                                                 \nRESPONDENT                                                                          \n \n \n OPINION FILED APRIL 5, 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 JAMES A. ARNOLD, II, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On March 20, 2023, the above captioned claim came on for hearing at Fort Smith, \nArkansas.  A pre-hearing conference was conducted on September 7, 2022 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 her low back on October 24, \n2021. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Temporary total disability or temporary partial disability benefits from October  \n\nHolman – H109839 \n2 \n \n \n25, 2021 through March 24, 2022. \n2.    Temporary total disability benefits from July 25, 2022 through a date yet to be  \ndetermined. \n3.    Additional medical treatment. \n4.     Attorney’s fee. \n5.     Compensation rates. \n  At the time of the hearing  claimant indicated that she is no longer requesting \ntemporary  total  or  temporary  partial  disability  benefits  from  October  25,  2021  through \nMarch  24,  2022,  but  is  only  requesting temporary  total  disability  benefits from  July  25, \n2022 through a date yet to be determined.  The parties also indicated at the hearing that \nthey would resolve the compensation rate issue and that it was no longer an issue to be \nlitigated. \nClaimant  contends  she  is  entitled  to  temporary  total  disability  benefits  from  July \n25, 2022 until a date yet to be determined.  Claimant contends she is entitled to medical \ntreatment  by  or  at  the  direction  of  Dr.  Blankenship,  including  a  referral  to  Dr. Cannon.  \nClaimant contends her attorney is entitled to the appropriate attorney’s fee in regard to \nany indemnity benefits owed but not previously paid. \n   The respondents contend the claimant is not entitled to any additional temporary \ntotal disability benefits.  Claimant initially sought treatment on her own and once the injury \nwas accepted, respondents paid claimant back TTD in the amount of $1,018.31 to cover \nthe period of October 24, 2021 through November 15, 2021, when claimant returned to \nlight  duty.    Claimant  remained  on  light  duty  and  was  accommodated  until  she  was \nreleased  at  MMI  on  March  24,  2022  with  no  physical  impairment  from  the injury  on \n\nHolman – H109839 \n3 \n \n \nOctober  24,  2021.    Claimant  sought  and  received  a  change  of  physician  to  see  Dr. \nBlankenship.  Dr. Blankenship relied on the same MRI that was relied upon at the time \nshe was released at MMI.  Claimant’s condition is not a consequence of her accepted \nwork-related injury. \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 her 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 September  7,  2022  and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted as fact. \n 2.    Claimant has met her burden of proving by a preponderance of the evidence \nthat  she  is  entitled  to  additional  medical  treatment  for  her  compensable  injury  as \nrecommended by Dr. Blankenship. \n 3.   Claimant has met her burden of proving by a preponderance of the evidence \nthat  she  is  entitled  to  temporary  total  disability  benefits  beginning  July  25,  2022 and \ncontinuing through a date yet to be determined. \n 4.      Respondent  has  controverted  claimant’s  entitlement  to  all  unpaid  indemnity \nbenefits.  \n \n FACTUAL BACKGROUND \n The parties have stipulated that claimant suffered a compensable injury to her low \n\nHolman – H109839 \n4 \n \n \nback while working for respondent on October 24, 2021.   The claimant primarily worked \nin respondent’s deli department, but on that day was asked to unload a pallet of bulk food.  \nIt was while claimant was engaged in this unloading that she injured her low back. \n Two days after her injury claimant was evaluated by Noma Kellner,  APRN, who \nrecorded a  history of claimant complaining of lower back pain wrapping to her stomach.  \nShe  also  noted  that  claimant  was  having  a  difficult  time  walking.    Kellner  diagnosed \nclaimant’s condition as acute low back pain and prescribed Diazepam due to claimant’s \ninability to take steroids or NSAIDS.  Kellner also ordered an MRI scan.   \n Three  days  later,  on  October  29,  2021,  claimant  was  seen  by  Keena  Melton, \nAPRN.  Melton  noted  that  claimant  was  not  taking  any  pain  medication,  but  had  been \ntaking over-the-counter Tylenol which was not very effective. \n Claimant underwent the MRI scan on November 1, 2021, and it was interpreted as \nshowing a central disc herniation indenting the epidural fat at L5-S1.  Following the scan, \nclaimant was seen by her primary care physician, Dr. Timothy Johnson.  He noted that \nclaimant’s condition had significantly improved and that he would hold off on any further \ntesting  or  treatment.    Based  on  the  finding  of  the  herniated  disc,  he  did  indicate  that \nclaimant should avoid any heavy lifting. \n On  November  10,  2021,  claimant  was  evaluated  by  Dr.  Scott  Kuykendall,  who \ndiagnosed claimant’s condition as low back pain and he prescribed physical therapy twice \na week for six weeks.  Medical records indicate that claimant began undergoing physical \ntherapy on November 22, 2021, and according to Dr. Johnson’s report of December 8, \n2021, it did not provide any significant improvement.  In his report of December 13, 2021, \nDr. Kuykendall indicated that claimant stated that she was unable to tolerate the physical \n\nHolman – H109839 \n5 \n \n \ntherapy and he referred claimant for a neurosurgical evaluation.   \n Claimant was seen by Dr. Edward Saer, orthopedic surgeon, on January 6, 2022.  \nHe did not have the benefit of claimant’s MRI scan, but did have the interpretive report.  \nHe was of the opinion that claimant had low back pain as the result of an overuse type \ninjury and noted that claimant would improve with time.  He indicated that he would like \nto review the MRI scan and recommended that claimant continue with physical therapy. \n Claimant returned to Dr. Saer on January 27, 2022, and his report indicates that \nclaimant stated that she was feeling worse.  He reviewed the MRI scan and was of the \nopinion that there was no evidence of disc herniation.  He informed claimant that she was \ngoing  to  have  good  days  and  bad  days  and  that  her  expectations  were  probably \nunrealistic.  He also prescribed continued physical therapy. \n On February 22, 2022, claimant was evaluated by Dr. Anthony Davis, neurologist.  \nDr. Davis ordered a repeat MRI scan and indicated that he would prescribe gabapentin.  \nOn March 3, 2022, claimant returned to Dr. Saer who noted: \n  I reviewed her prior x-rays and MRI.  She has a mildy \n  degenerative disc at L3-4.  I explained that so far we \n  have not been able to pinpoint a problem.  Most likely \n  she has had a soft tissue injury.  I recommend getting \n  a SPECT-CT scan of the thoracic and lumbar spine to \n  make sure that she does not have another, more \n  significant problem.   \n \n \n On March 8, 2022, claimant underwent the repeat MRI which was interpreted as \nprimarily showing degenerative changes.  Claimant returned to Dr. Davis on March 10, \n2022 and she informed him that she had not started the gabapentin after reading about \npossible  side  effects.    In  his  report  he  states  that  claimant  has  now  agreed  to  try  the \n\nHolman – H109839 \n6 \n \n \ngabapentin.   \n On March 24, 2022 claimant underwent the whole body bone scan that had been \nrecommended by Dr. Saer.  Following that scan claimant returned to Dr. Saer for the last \ntime on March 24, 2022, and he noted that the bone scan for claimant’s lumbar spine was \nnormal.  He further stated: \n  We had a very long discussion today.  She is literally \n  in tears because she wants to return to her job but \n  simply cannot.  I explained that she does not have \n  any evidence of malignancy or other problems that \n  need surgery.  She has been through physical therapy. \n  She again tells me today that she has to get her \n  brother to help her get out of bed, and has to have \n  someone standing by when she takes a shower. \n \n  I explained that she is going to need to start working \n  on trying to move better and get more active on her \n  own.   \n \n  There is simply no easy way to do this. \n \n  As far as work goes, I think she is going to need to \n  look for something in the sedentary category.  I doubt \n  an FCE would be of any value.  She is at MMI.  There \n  is no permanent impairment for this injury. \n \n \n Claimant  filed  for  and  received  a  change  of  physician  to  Dr.  Blankenship, \nneurosurgeon, and was initially evaluated by him on July 25, 2022.  He diagnosed her \ncondition as SI joint dysfunction and recommended that she see Dr. David Cannon for a \nright  SI  joint  injection and  that  she  continue with  physical  therapy.   He also  prescribed \nMobic and Lyrica.   \n Apparently,  claimant  saw  Dr.  Blankenship  for  a  second  time  in  February  2023; \nhowever, his report from that visit is not in the record. Dr. Blankenship did discuss that \n\nHolman – H109839 \n7 \n \n \nvisit  in  his  deposition  stating  that  claimant  had  not  undergone  the  injection  with  Dr. \nCannon  due  to  her  past  reaction  to  steroid  medication.    Instead,  Dr.  Blankenship  was \nrecommending a numbing injection before deciding whether claimant was a candidate for \nsurgery on the SI joint.   \n Respondent  has  denied  additional  medical  treatment  recommended  by  Dr. \nBlankenship and as a result claimant has filed this claim contending that she is entitled to \nadditional  medical  treatment  as  well  as  temporary  total  disability  benefits  and  a \ncontroverted attorney fee. \n \nADJUDICATION \n Claimant  contends  that  she  is  entitled  to  additional  medical  treatment  for  her \ncompensable low back injury.  Claimant has the burden of proving by a preponderance \nof  the  evidence  that  additional  medical  treatment  is  reasonably  necessary.   Stone  v. \nDollar General Stores, 91 Ark. App. 260, 209 S.W. 3d 445 (2005).   \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  met  her  burden  of  proving  by  a \npreponderance  of  the  evidence  that  she  is  entitled  to  additional  medical  treatment  as \nrecommended by Dr. Blankenship. \n First,  I  note  that  respondent  has  submitted  into  evidence  a  number  of  medical \nrecords dating back to 2011.  I note that some of those records indicate that claimant has \nmade  complaints  of  similar  low  back  pain  in  the  past  and  that  many  of  her  other \ncomplaints have not been supported by objective findings.  Claimant acknowledges that \nshe has had some back complaints in the past, but states that her current complaints are \n\nHolman – H109839 \n8 \n \n \nmuch worse than her prior complaints.  Indeed, the prior medical records do not reflect a \nhistory of back complaints as significant as those noted since her injury on October 24, \n2021.   \n With regard to claimant’s compensable low back injury, I note that it is the opinion \nof  Dr.  Blankenship  that  her  complaints  are  related  to  an  SI  joint  dysfunction.    Dr. \nBlankenship bases his opinion that claimant suffers from an SI joint dysfunction on his \nclinical  examination  of  claimant  as  well  as  her  response  to  five  different  tests  he \nperformed on claimant and her responses to those tests.  Dr. Blankenship acknowledges \nthat the five tests are subjective in nature.  He also acknowledges that her reaction to an \ninjection would be objective in nature and at his deposition indicated that MRIs, x-rays, \nand bone scans are not helpful in diagnosing an SI joint dysfunction. \n However, I note that respondent has accepted an admittedly compensable injury \nto claimant’s low back and an injured worker is not required by law to establish a need for \nongoing  medical  treatment  through  the  evidence  of  objective  medical  findings.   Ark. \nHealth Ctr. v. Burnett, 2018 Ark. App. 427, 558 S.W. 3d 408.  Instead, claimant has the \nburden  of  proving  by  a  preponderance  of  the  evidence  that  the  medical  treatment  is \nreasonable and necessary.  Goyne v. Crabtree Contracting Company, 209 Ark. App. 200, \n301 S.W. 3d 16.   \n Here,  claimant  has  been  treated  by  several  physicians  and  has  undergone \nextensive  physical  therapy  which  has  done  little  to  alleviate  her  low  back  complaints. \nFollowing her change of physician claimant came under the care of Dr. Blankenship who \nhas diagnosed claimant as suffering from an SI joint dysfunction.  Dr. Blankenship has \nrecommended additional medical treatment which needs to be performed in the form of \n\nHolman – H109839 \n9 \n \n \na  numbing  injection  before  he  can determine  whether  claimant  is in  need of a  surgical \nprocedure.  I  find  that  the  opinion  of  Dr.  Blankenship  is  credible  and  entitled  to  great \nweight. \n Accordingly, based upon the opinion of Dr. Blankenship, I find that claimant has \nmet  her  burden  of  proving  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \nadditional medical treatment as recommended by Dr. Blankenship. \n Claimant also contends that she is entitled to additional temporary total disability \nbenefits beginning July 25, 2022 and continuing through a date yet to be determined.  In \norder  to  be  entitled  to  temporary  total  disability  benefits,  claimant  has  the  burden  of \nproving by a preponderance of the evidence that she remains within her healing period \nand  that  she  suffers  a  total  incapacity  to  earn  wages.   Arkansas  State  Highway  & \nTransportation Dept. v. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981).   Claimant has \nremained within her healing period as reflected in the opinion of Dr. Blankenship.  I also \nnote  that  at  the  time  of  claimant’s  first  visit  with  Dr.  Blankenship  on  July  25,  2022,  he \nindicated that claimant should remain off work until the time of his next visit.  Apparently, \nthat visit did not occur until February 2023.  At his deposition, Dr. Blankenship indicated \nthat he would not want claimant to continue working for the respondent at this time.  He \nspecifically indicated that claimant could not stand for any prolonged periods of time, twist, \nbend  at  the  waist,  or  lift  more  than  10  to  20  pounds.    Based  upon  the  opinion  of  Dr. \nBlankenship, I find that claimant has proven by a preponderance of the evidence that she \nremains within her healing period and that she suffers a  total incapacity to earn wages \nand has done so since July 25, 2022.  Accordingly, I find that claimant has met her burden \nof  proving  by  a  preponderance  of  the  evidence  that  she  is  entitled  to  temporary  total \n\nHolman – H109839 \n10 \n \n \ndisability  benefits  beginning  July  25,  2022  and  continuing  through  a  date  yet  to  be \ndetermined.    Respondent  has  controverted  claimant’s  entitlement  to  unpaid  indemnity \nbenefits. \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \nshe  is  entitled  to  additional  medical  treatment  for  her  compensable  low  back injury  as \nrecommended  by  Dr.  Blankenship.    She  has  also  proven  by  a  preponderance of  the \nevidence  that  she  is  entitled  to  temporary  total  disability  benefits  from  July  25, 2022 \nthrough  a  date  yet  to  be  determined.    Finally,  respondent  has  controverted claimant’s \nentitlement to all unpaid indemnity benefits. \n Pursuant 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 Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $756.45. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H109839 NANCY HOLMAN, Employee CLAIMANT WALMART ASSOCIATES, INC., Employer RESPONDENT WALMART CLAIMS SERVICES, Carrier RESPONDENT OPINION FILED APRIL 5, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansa...","fetched_at":"2026-05-19T23:08:16.426Z","links":{"html":"/opinions/alj-H109839-2023-04-05","pdf":"https://labor.arkansas.gov/wp-content/uploads/HOLMAN_NANCY_H109839_20230405.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}