{"id":"alj-H200157-2023-09-08","awcc_number":"H200157","decision_date":"2023-09-08","opinion_type":"alj","claimant_name":"Lindsey Crane","employer_name":null,"title":"CRANE VS.HOBBY LOBBY STORES INC. AWCC# H200157 SEPTEMBER 8, 2023","outcome":"granted","outcome_keywords":["granted:6","denied:1"],"injury_keywords":["lumbar","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//CRANE_LINDSEY_H200157_20230908.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CRANE_LINDSEY_H200157_20230908.pdf","text_length":22796,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H200157 \n \nLINDSEY CRANE, Employee                                                                                   CLAIMANT \n \nHOBBY LOBBY STORES INC., Employer                                                        RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC., Carrier                  RESPONDENT \n \n OPINION FILED SEPTEMBER 8, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by KEVIN J. STATEN, Attorney, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n  \n On July 26, 2023, the above captioned claim came on for hearing at Fort Smith, Arkansas.  A \npre-hearing conference was conducted on May 18, 2023, and a pre-hearing order was filed on May 26, \n2023.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made a part \nof 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 employee/employer/carrier relationship existed on December 13, 2021. \n3.  Claimant  sustained  a  compensable  injury  on  December  13,  2021,  but  respondent  has \ncontroverted additional temporary total disability benefits, and additional medical benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1. Whether claimant is entitled to additional medical benefits and additional temporary total \ndisability benefits. \n 2. Attorney fees. \n\nCrane-H200157 \n2 \n \nAt the prehearing conference, the claimant contended that “She is entitled to temporary partial \ndisability benefits from February 27, 2023, until April 18, 2023, and temporary total disability benefits \nfrom April 18, 2023, until a date yet to be determined. The claimant contends that she exercised her \none  time  right  to  change  physicians  and  that  her  now  authorized  treating  physician,  Dr.  James \nBlankenship,  has  recommended  surgery;  however,  the  respondents  have  refused  to  authorize  that \nsurgery.  Accordingly,  the  claimant  contends  that  she  is  entitled  to  additional  treatment  by  Dr. \nBlankenship,  including  the  recommended  surgery. The  respondents  have  been  requested  to  initiate \npayment  of  temporary  disability  benefits  and  have  refused  to  do  so.  Accordingly,  the  claimant \ncontends  that  any  disability  benefits  not  previously  paid  for  which  the  respondents  do  not  accept \nliability  by  the  date  of  May 18, 2023,  prehearing  conference  have  been  controverted  and  that  the \nclaimant’s attorney is entitled to an appropriate attorney’s fee in regard to such benefits.” \nThe respondents contended that “The claimant reached the end of her healing period when \nreleased  by  neurosurgeon  Dr.  Luke  Knox  with  a  5%  permanent  partial  disability  rating  on  July  20, \n2022.  The  respondents  further  contend  that  since  Dr.  Luke  Knox  opined  that  no  additional \nneurosurgical avenues  would  afford  any  benefit  to  the  claimant’s  complaints,  that  the  surgery \nrecommended by Dr. James Blankenship is not reasonable, necessary, and related to her compensable \ninjury of December 13, 2021. Also, since she has reached the end of the healing period, she is not \nentitled to any additional temporary total disability.”  \nHowever, there was another issue raised by respondents prior to the prehearing conference.  \nA  motion  for  an  independent  medical  examination  (IME)  was  filed  on  April  7,  2023.    Claimant \nobjected to the physician suggested by respondents in that motion.   During the prehearing conference, \nthe attorneys agreed that Dr. Scott Schlesinger would be acceptable to each party to perform the IME; \nbecause of that agreement, that issue was removed from the list of matters to be considered at the \n\nCrane-H200157 \n3 \n \nhearing.  Unfortunately, Dr. Schlesinger failed to cooperate with respondents in scheduling the IME, \nand on July 14, 2023, respondents renewed their request for an IME to be conducted.  Rather than \ncontinue the case, the motion for an IME as well as the issues outlined in the prehearing order were \nheard on July 26, 2023\n From a review of the entire record, including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1. The Arkansas Workers' Compensation Commission has jurisdiction over this claim. \n2. The stipulations agreed to by the parties at a pre-hearing conference conducted on May 18, \n2023, and contained in a pre-hearing order filed on May 26, 2023 are hereby accepted as fact.   \n3.  Respondents have failed to prove that an IME is both reasonable and necessary in order \nto make a judgment about this claim, and that motion is therefore denied.  \n4. Claimant has met her burden of proof by a preponderance of evidence that she is entitled \nto  temporary  total  disability  benefits  beginning  April  18,  2023,  and  continuing  to  a  date  to  be \ndetermined. \n 5. Claimant has met her burden of proof by a preponderance of the evidence that she is entitled \nto additional medical benefits as directed by Dr. James Blankenship for her lumbar back injury. \n6.    Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \ntemporary partial disability benefits from February 27, 2023, until April 18, 2023. \n7.  Respondent has controverted claimant's entitlement to all indemnity benefits from April \n18, 2023, to a date to be determined.  \n\nCrane-H200157 \n4 \n \n \n \n FACTUAL BACKGROUND \n As set forth above, the hearing on the motion by respondents for an IME and the claimant’s \ncase in chief were combined.  The parties understood that if I determined that an IME was reasonable \nand  necessary,  no  decision  would  be  rendered  on  the  other  issues  presented.    If  I  decided  that  the \nIME was not reasonable and necessary, then a decision on those issues would be rendered.  \n To make the record complete, the following documents are blue backed to the record:  \n1. April 7, 2023: Respondents’ Motion for an Independent Medical Examination \n2. April 20, 2023: Claimant’s Response to said Motion. \n3. April 21, 2023: Respondent’s Reply. \n4. April 21, 2023: Email from the Court to the parties.  \n5. July 14, 2023: Letter from Mr. Staten on behalf of respondents \n6. July 18, 2023: Email from the Court to the parties.\n1\n \n \nHEARING TESTIMONY \n \n Paul Crane, claimant’s father, testified that claimant was athletic  before  her  injury,  and  had \nplayed as many as four sports while in high school.  Since the injury and after claimant was released \nto return to work, he observed that she was limited in her ability to sit, stand, walk, lie down, and pick \nup things.  He was unaware that Dr. Knox told claimant to return to see him if she had difficulty after \nhe released her from his care. \n Because this was accepted as a compensable injury, a detailed discussion of how claimant was \ninjured is not necessary; she said she was unloading a delivery truck when she hurt her back. Claimant \nwas treated by Michael Valentine, PA-C, in Dr. Knox’s office before she saw Dr. Knox. She testified \nthat after she was released from Dr. Knox’s care, she attempted to return to work, but could not do \nher previous job and was working only 12 hours a week in a different position with Hobby Lobby.   \nhe did not know Dr. Knox was willing to see her again after he released her.  Dr. Blankenship took \n \n1\n Mr. Walker’s letter of July 17, 2023, was admitted as part of his non-medical exhibits.  \n\nCrane-H200157 \n5 \n \n \nher  off  work  on  April  18,  2023.    Activities  such  as  grocery  shopping,  riding  in  a  car  and  menial \nhousework caused claimant pain.  She felt like she is in the same or worse condition as when she last \nsaw Dr. Knox.   \n On  cross-examination,  claimant  said  she  did  not  know  that  the  results  of  her  Functional \nCapacity Evaluation  were  unreliable.   Claimant stated  that  Hobby  Lobby  tried  to  work with  her  to \ngive her jobs she could physically perform.  \nREVIEW OF THE EXHIBITS \n \nA. Medical exhibits. \n \nAfter seeing some nurse practitioners and PA-C Valentine, claimant was then treated by Dr. \nLuke Knox.  His record of July 20, 2022, summarized what treatment he offered to claimant while \nunder his care: physical therapy, an MRI, and a lumbar epidural injection.  The MRI was performed \non March 24, 2022, and showed “multilevel facet arthropathy which is considered to be mild at each \nlevel.  There is a midline bulging disc at L4-L5 with disc degeneration showing an annular tear.  No \nsignificant foraminal stenosis noted.” Dr.  Knox  then  made  a  referral  for  a  Functional  Capacity \nEvaluation on May 22, 2022; when he got the results, his record stated: “close case unreliable results \non FCE.”  In the clinic note of July 20, 2022, Dr. Knox concluded by saying “Unfortunately, I do not \nbelieve any neurosurgical avenues would afford any benefit to her complaints,” and he would follow \nher on a p.r.n. basis.   \nClaimant  began  seeing  Dr.  Blankenship  on  February  27,  2023.    His  impression  was  that \nclaimant:   \n“has a posterior disc herniation and annular fissure at L4-L5. Of greater importance \nshe has marked hypersplaying of the posterior disc space in flexion which is grossly \nabnormal for somebody as young as she is.  I told her there is no doubt the disruption \nof her annulus and the posterior disc herniation have led to significant instability at the \nL4-L5 level.”  \n \n\nCrane-H200157 \n6 \n \n \nDr. Blankenship was also concerned about claimant’s elevated blood pressure, which he attributed \nto being in pain for over a year. In recommending surgery, Dr. Blankenship recorded the following:  \n “The medical rationale for the procedure I have offered is: \n  1. She has failed routine and usual conservative measures with two different \n  rounds of physical therapy with people I know. She has had a LESI. None \n  of these things afforded her any relief and she is getting worse. \n                2. Despite the fact that she has 36 out of 50 consistency measures, I feel very \n comfortable  in  the  fact  that  this  patient  wants  to  get  better.  I  think  the \n inconsistencies had to do with fear avoidance because she has been hurting                                  \n as long as she has. \n  3. The rationale for what I have offered her surgically has more to do with \n  that  she  has  gross  annular  fissuring  at  L4-L5.  She  has  a  posterior  disc \n  protrusion but more importantly she has marked movement of the disk space \n  in  flexion  and  extension  with  collapse  anteriorly  and  marked  splaying \n  posteriorly  in  flexion,  completely  abnormal  for  a  patient  her  age.  I  would \n  recommend a lateral approach since her iliac crest is low enough with a lateral \n  interbody arthrodesis at l4-l5 and then posterior BridgePoint clamping with \n  facet disruption and posterolateral arthrodesis.”  \n \nOn  April  18,  2023,  Dr.  Blankenship  took  claimant  off  work  until  after  she  had  the \nrecommended  surgery.\n2\n    He  ordered  another  MRI  prior  to  surgery  to  ensure  nothing  had  changed \nsince  the  one  done  in  2022.    Claimant  was  seen  again  on  May  8,  2023,  and  Dr.  Blankenship  was \nawaiting authorization from the workers’ compensation carrier to operate on claimant.  \n B:  Non-Medical Exhibits \n Claimant submitted  her June 15, 2023, Request for Accommodation in which she specified \nwhat tasks she could not perform.  She also provided the letter her attorney sent to  this Court and \nrespondent’s counsel on July 18, 2023, in which she objected to this matter being continued  for an \nIME, which included three requests for mileage reimbursement and two inquiries about the status of \nthe IME.    \n Respondent submitted a Record of Communication with Dr. Schlesinger that documented the \n \n2\n There was no medical record submitted for an office visit of April 18, 2023.   \n\nCrane-H200157 \n7 \n \n \nattempts to get the IME scheduled, and the FCE that was done on June 8, 2022.  As mentioned by \nDr. Blankenship, the examiner at the FCE said claimant provided an unreliable effort, with 36 of 50 \nconsistency measures within the expected limits. The conclusion of the FCE was that claimant could \nwork in at least the light classification, but because the examiner deemed that she gave an unreliable \neffort, her actual capability could be higher than the light classification. \nADJUDICATION \n \nAs  reflected  in  my  email  of  July  18,  2023,  I  determined  not  to  grant  a  continuance  of  the \nhearing on the merits but would first hear arguments for and against the IME, and then claimant could \npresent her case as outlined in the prehearing order.  After the parties argued the motion for an IME, \nI announced that the evidence presented in claimant’s case in chief would be considered in ruling on \nthat motion. If I found the IME was reasonable and necessary, the case would be held in suspense \nuntil the results of the IME were made available to the parties; if I found the IME was not reasonable \nand necessary, I would deny the motion and issue an Opinion on the evidence presented.  \nTherefore, the first question for me to decide is whether an independent medical examination \nis reasonable and necessary in this matter?  \n           Arkansas Code Annotated section 11-9-511(a) provides, in relevant part: \nAn injured employee claiming to be entitled to compensation shall submit to \nsuch  physical  examination  and  treatment  by  another  qualified  physician, \ndesignated  or  approved  by  the  Workers'  Compensation  Commission,  as  the \nCommission may require from time to time if reasonable and necessary. The \nthreshold  question  is  whether  the  examination  is  reasonable  and  necessary. \n(Emphasis Added) \n \n Rule 30 (1) of the Arkansas Workers’ Compensation Commission provides:  \n \nAn independent medical examination shall include a study of previous history \nand  Medical  Care  information,  diagnostic  studies,  diagnostic  x-rays,  and \nlaboratory studies, as well as an examination and evaluation. This service may \nbe necessary in order to make a judgment regarding the current status of the \ninjured  or  ill  worker,  or  to  determine  the  need  for  further  health  care. \n\nCrane-H200157 \n8 \n \n \n(Emphasis added.)  \n \nIn  reviewing  the  medical  records,  I  do  not  agree  with  respondent’s  characterization  of  the \nopinions of Dr. Knox and Dr. Blankenship as being “radically different.” Those doctors arrived at the \nsame conclusion—claimant has an annular fissure at L4-L5. Dr. Knox concluded no more treatment \nwas required while Dr. Blankenship recommends surgery is necessary for claimant’s condition.  \nAs  emphasized  above,  the  standard  is  whether  an IME  is  reasonable  and  necessary,  or  if  it \nwould be necessary to make a judgment in a case about a claimant’s current status.  I find respondents \nmet neither criterion.  \nA.  Is it reasonable to order an IME?  \nI have reviewed the pleadings and correspondence in this matter and note that claimant was \nwilling to cooperate and allow an independent medical evaluation so long as it was performed by a \nneurosurgeon. However, that was in April 2023.  Respondents have not restarted claimant’s temporary \ntotal disability (TTD) payments despite her authorized physician, Dr. Blankenship, removing her from \nwork.  When Dr. Schlesinger did not cooperate in getting the IME scheduled before the hearing of \nthis matter, claimant’s objection was that respondent was not diligent in alerting this Court that there \nwas an issue with Dr. Schlesinger and that delaying the matter was creating a hardship for her.   I agree \nwith  claimant  on  this  point.    Respondents  did  not  cause  the  delay  in  getting  the  IME  scheduled;  I \naccept as accurate respondents’ exhibit showing how frequently Dr. Schlesinger was contacted about \nscheduling the IME.   Still, I cannot find it reasonable to delay this matter longer for an IME when \nclaimant is not receiving TTD, especially since I do not believe the IME to be necessary for a decision \nto be reached in this matter.  \nB.  Is it necessary to order an IME? \n While  it  is  true  that  Drs.  Knox  and  Blankenship  have  recommended  a  different  course  of \n\nCrane-H200157 \n9 \n \n \ntreatment, it is obvious from the records of Dr. Blankenship, as well as the testimony of claimant and \nher father, that the conservative course of treatment provided by Dr. Knox did not solve her issues.  \nA conflict in the opinions of the doctors is no reason in and of itself to order a “tiebreaker” IME.  \nThe  Commission  has  authority  to  accept  or  reject  medical  opinion  and  to  determine  its  medical \nsoundness  and  probative  force. Oak  Grove  Lumber  Co.  v.  Highfill,  62  Ark.  App.  42,  968  S.W.2d  637 \n(1998).  I agree with Dr. Blankenship’s assessment that the inconsistent result on the FCE was due to \ncaution  by  claimant  during  the  evaluation.    It  appears  that  Dr.  Knox  discharged  her  based  on  the \ndetermination that she didn’t give her best effort (“close case unreliable results on FCE”),  without \ntaking into consideration that claimant was self-limiting because of the problem in her back.   \n Therefore, because I don’t believe an additional delay would be reasonable and because the \nopinions of the doctors are not different on the cause of claimant’s problem, it is not necessary that \nan IME be performed; conservative care did not work, and Dr. Blankenship is offering an option that \ncould bring claimant some relief.   Respondents’ Motion for an IME is denied.  \n Turning now to the issues raised in the prehearing order, claimant has requested  additional \nmedical benefits as recommended by Dr. Blankenship, TTD, and temporary partial disability (TPD) \nbenefits as well as an attorney’s fee.   I will address these separately. \n A:  Is claimant entitled to additional medical benefits?  \n      The parties stipulated, and I accept as fact, that claimant sustained a compensable injury on \nDecember 13, 2021. On this point, then, the question is whether claimant proved by a preponderance \nof  the  evidence  entitlement  to  the  medical  treatment  recommended  by  Dr.  Blankenship  for  that \ncompensable  injury, Johnson  Controls,  Inc.  v.  Miller,  2023  Ark.App.  235.  I  find  that  she  has  done so. \nAlthough a claimant's testimony is never viewed as uncontroverted, the Commission need not reject \nthe claimant's testimony if it finds that testimony worthy of belief. Ringier America v. Combs, 41 Ark. \n\nCrane-H200157 \n10 \n \n \nApp. 47, 849 S.W.2d 1 (1993). Having had the benefit of seeing claimant testify, I found  her to be \ncredible that her back continues to hurt despite all the conservative treatment she had received up to \nthe date of the hearing.  Even considering the natural bias that I would expect a father to have for his \ndaughter, I found the testimony of Paul Crane to be credible on the issues to which he spoke.   For \nthese reasons, as well as those expressed in denying the motion for an IME, I find claimant has met \nher  burden  of  proof  that  additional  medical  treatment  as  recommended  by  Dr.  Blankenship  is \nwarranted.  \n B:   Is claimant entitled to TPD benefits from February 27, 2023, until April 18, 2023? \n An award of temporary partial-disability benefits is appropriate during the healing period in \nwhich an employee suffers a partial incapacity to earn wages. Amaya v. Newberry's 3N Mill, 102 Ark. \nApp. 119, 282 S.W.3d 269 (2008). The claimant has the burden of showing by a preponderance of the \nevidence that she remains in the healing period. Hickman v. Kellogg, Brown & Root, 372 Ark. 501, 277 \nS.W.3d 591 (2008). \n Claimant  was  released  to  perform  light  duty  work  by  Dr.  Knox  on  July  20,  2022,  but  her \nemployer  did  not  have  full  time  light  duty work  for  her.  From  the  first  time  Dr.  Blankenship saw \nclaimant on February 27, 2023, he did not believe she was out of her healing period.  Unfortunately, \nhis record of that date did not specifically address claimant’s ability to earn wages; claimant has not \nattempted to work at other employment that were within the light classification placed upon her by \nDr. Knox.  While it may have been an oversight on the part of Dr. Blankenship, I cannot speculate \non what he intended before he clearly stated that claimant was to be off work completely, and therefore \nclaimant has failed to prove she is entitled to TPD benefits from February 27 until April 18, 2023. \nC. Is claimant entitled to TTD benefits from April 18, 2023, until a date to be determined?  \n To  be  entitled  to  TTD  benefits  for  an  unscheduled  injury,  a  claimant  must  prove  by  a \n\nCrane-H200157 \n11 \n \n \npreponderance of the evidence that she remains within her healing period and suffers a total incapacity \nto earn wages. Allen Canning Co. v. Woodruff, 92 Ark. App. 237, 212 S.W.3d 25 (2005).  On   April   18, \n2023, and again on May 8, 2023, Dr. Blankenship clearly removed claimant from all work activities.  \nThe evidence in this case amply supports that claimant is either again in a healing period or perhaps \nwas never out of one. Therefore, claimant has met her burden of proof that she is entitled to TTD \nbenefits from April 18, 2023, until a date to be determined.  \nORDER \n \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $448.95. \n IT IS SO ORDERED. \n \n \n                                                                                              \n_______     \n JOSEPH C. SELF \n ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H200157 LINDSEY CRANE, Employee CLAIMANT HOBBY LOBBY STORES INC., Employer RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., Carrier RESPONDENT OPINION FILED SEPTEMBER 8, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastia...","fetched_at":"2026-05-19T23:02:37.618Z","links":{"html":"/opinions/alj-H200157-2023-09-08","pdf":"https://labor.arkansas.gov/wp-content/uploads//CRANE_LINDSEY_H200157_20230908.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}