{"id":"alj-H202188-2023-10-26","awcc_number":"H202188","decision_date":"2023-10-26","opinion_type":"alj","claimant_name":"Mary Cummins","employer_name":"Accurate Healthcare Inc","title":"CUMMINS VS. ACCURATE HEALTHCARE INC. AWCC# H202188 OCTOBER 26, 2023","outcome":"granted","outcome_keywords":["granted:4","denied:2"],"injury_keywords":["back","lumbar","knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//CUMMINS_MARY_H202188_20231026.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CUMMINS_MARY_H202188_20231026.pdf","text_length":15185,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H202188 \n \nMARY CUMMINS, Employee                                                                         CLAIMANT \n \nACCURATE HEALTHCARE INC., Employer                                         RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY, Carrier                                   RESPONDENT \n \n OPINION FILED OCTOBER 26, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by DAVID L. SCHNEIDER, Attorney, Springdale, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n  \n On August 24, 2023, the above captioned claim came on for a hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on June 22, 2023 and a pre-hearing order \nwas  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 this claim. \n            2.   The employee/employer/carrier relationship existed on February 23, 2022. \n            3.   The claimant sustained a compensable injury on February 23, 2022. \n            4.  The compensation rate is $635.00 for temporary total disability, and $476.00 for      \n       permanent partial disability.   \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1.  Whether claimant is entitled to additional medical treatment regarding her back \n injury. \n\nCummins-H202188 \n2 \n \n \n            2.  Whether claimant is entitled to temporary total disability benefits. \n            3.   Attorney’s fees. \n All other issues are reserved by the parties. \n The claimant contends that “She sustained a compensable injury while working for \nrespondent on or about 02/23/22. At that time, claimant was in the course and scope of her \nemployment  with  respondent  when  claimant  injured  her  back  while  delivering  medical \nsupplies.  Claimant  has  been  treating  conservatively  with  Dr.  Randolph  in  the  form  of \ninjections, physical therapy, and surgery. Dr. Randolph has now recommended the claimant \nundergo a L4-5 lateral lumbar interbody fusion and has further stated she should be off work \nfrom 04/18/23 to a date to be determined. Respondents have controverted this surgery and \ntemporary total disability benefits.”  \n The respondents contend that “The surgical recommendation is not reasonable, \nnecessary, or related to the work injury and is not the responsibility of the respondents. It \nwas reviewed as required by Commission Rule 30 and denied.” \n          From a review of the entire record, including medical reports, documents, and other \nmatters  properly  before  the Commission,  and  having  had  an  opportunity  to  hear  the \ntestimony of the claimant and to observe her demeanor, the following findings of fact and \nconclusions 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 June  22,  2023, and  contained  in  a  pre-hearing  order  filed  that  same  date  are  hereby \naccepted as fact. \n 2.   Claimant has met her burden of proof by a preponderance of the evidence that \n\nCummins-H202188 \n3 \n \n \nshe is entitled to additional medical benefits from Dr. Gannon Randolph for her back injury. \n3.   Claimant has failed to prove by a preponderance of the evidence that she is \nentitled to temporary total disability benefits up to the date of the hearing. \n \nFACTUAL BACKGROUND \n In  her  contentions  listed above,  claimant sought  temporary  total  disability  benefits \nfrom April 18, 2023, until a date to be determined.  Before the testimony began at the hearing, \nclaimant withdrew that claim, advising that Dr. Randolph had released claimant to return to \nwork and had not said she was back in a period of disability since that release.  As such, there \ncan be no award of temporary total disability benefits.  Claimant asked that those indemnity \nbenefits begin when Dr. Randolph finds she is again disabled.   \nHEARING TESTIMONY \n \n Claimant  testified  that  on  February  23,  2022, she  was  unloading  a  bed  from her \ndelivery truck and injured her back while doing so. She developed lower back pain which was \nradiating  on  her  left  side.  After  having  difficulties  finding  a  physician,  she  was  eventually \nreferred  to  Dr.  Gannon  Randolph.  Dr.  Randolph  did  decompression  surgery  on  June  29, \n2022, which improved her condition somewhat, but claimant still had excruciating pain in her \nlower back. Following the surgery, she was able to sit whereas before the surgery, sitting was \npainful.  \n As of the date of the hearing, claimant said the pain in her lower back was getting \nworse. She said certain movements caused her back to feel as though someone was stabbing \nit with a knife. She has fallen a few times and was using a cane as of the date of the hearing. \nWhile claimant is scared to have the surgery Dr. Randolph is now suggesting, she believes it \nis necessary for her to improve where she can walk and engage in everyday activities.  \n\nCummins-H202188 \n4 \n \n \n Claimant was asked about Respondent’s Exhibit #2 and said that she had never been \nexamined by Dr. Robert Pick, nor had she had any correspondence with him regarding the \nstatus of her case.  \n On  cross-examination,  claimant  testified  that  she  had  previously  worked  for \nrespondent Accurate Healthcare but had to stop working due to fibromyalgia in her arms and \nshoulders.  \n Claimant  was  asked  about  an  EMG  nerve  conduction  study that  was done  by  Dr. \nMark Miedema in June 2022 and recalled that test but did not remember having another one \nin  April  2023.  She  did  not  know  that  the  second  EMG  was  normal  and  “Her  left \ndecompression  has  removed  all  the right sided radicular symptoms she is having.” She \nunderstood the records reflected that she discussed that EMG with Dr. Randolph, but she \ndid  not  recall  it.  She  had  discussed  an  intrabody  fusion  at  L4-L5  that  Dr.  Randolph  was \nrecommending.  \n On re-direct examination, claimant clarified that she was originally having left sided \nradicular pain but is now having right sided radicular pain. She said that even before surgery, \nshe was having some right sided radicular pain, but it wasn’t as bad as the left side until after \nthe surgery. She testified that the right-side radicular pain and the lower back pain is getting \nworse.  \nREVIEW OF THE EXHIBITS \n \n Both  claimant  and  respondents  submitted  records that  predated claimant’s back \nsurgery of June 29, 2022. Little in those records is relevant to the issue in this case because \nthe focus of that treatment and surgery was the radicular component of claimant’s back injury \nas it affected the left side of her lower extremity. The nerve conduction test performed by \n\nCummins-H202188 \n5 \n \n \nDr. Mark Miedema (R.X.1, pages 36-38) was specifically targeted to the left side of her body. \nThere were no “motor left/right comparison done in that study.” \n Claimant was asked on cross-examination about a second EMG that occurred after \nher surgery. There is no report from a post-surgical EMG, but rather a reference to it in Dr. \nRandolph’s notes. There was an intraoperative neurophysiology test done during the surgery \non June 29, 2022. (R.X.1,pages 54,55) While nothing in that report specifies that the left side \nof claimant’s body was being tested, I note that the report says, “Please see tech notes for \ndetails of stimulation and recording,” but those notes were not submitted as exhibits to show \nwhich side of claimant’s body was being tested during the surgery; because the surgery was \nto relieve pain on her left side, it would have been unusual for her right side to have been \ntested during that procedure.  \n Following the surgery, claimant did very well on her left side but within six weeks of \nthe surgery, she developed right S1 radiculopathy. She was seen by physician’s assistant \nAmanda  Haas  on  August  18,  2022, and  was  given  a Medrol  dosepak  and  was  prescribed \nphysical therapy. Claimant had an MRI on her lumbar spine on October 11, 2022, which was \ncompared  to  the  March  24,  2022, MRI  by  Dr.  Signe  Rebolledo.  His  report  included  the \nfollowing: \n“The interval left laminectomy at L4 has improved canal stenosis at \nthe  L4-5  level.  Residual  central  disc extrusion and  ligamentum \nflavum thickening contribute to mild persistent canal stenosis at L4-\n5.  There  was  moderate  left  and  mild  right  foraminal  narrowing, \nwhich appears mildly improved on the left.” \n \n Claimant  returned  to  Dr.  Miedema on  August  25,  2022, and  was  recertified  for \nphysical  therapy.  It  is  mentioned  that  she  was  having  right  S1 radiculopathy.  It  does  not \nappear that Dr. Miedema released her after that visit. (R.X.1, pages 64-69)  \n\nCummins-H202188 \n6 \n \n \n There  were  no  additional  records  from Dr.  Randolph;  however,  on November  8, \n2022, he issued a return to work note that said: “Patient was seen in my office on October \n27, 2022.  As  of  October  27,  2022, patient may return to work with no restrictions.” It is \nunclear that Dr. Randolph saw claimant on that date. She was back in his office on February \n2, 2023, complaining of continued symptoms of lumbopelvic junction pain radiating down \ninto her right buttock. Dr. Randolph noted that claimant had a “Palpable spasm just inferior \nmedial to  the  PSIS  on  the  right  side  which  reproduces  some  of  her  pain.  Dr.  Randolph \nadministered a GBR-trigger point injection. It is in this report that it is noted there was an \nEMG of the lower extremity conducted on January 18, 2023 which was normal. Dr. Randolph \nconcluded his report with:  \n“Patient is doing relatively well from a radicular standpoint. Still \nhaving low back pain. Really my only option for that is an L4-5 lateral \nlumbar intrabody fusion. She does have a spinal enthesopathy and I \nwill inject that with trigger point injection today. We will see how she \ndoes with this. She can call if she gets about fifty percent relief, we \ncould reinject in two weeks. I will see her back in three months.” \n \nHer next appointment was scheduled for May 25, 2023; however, claimant did not \nwait until the scheduled appointment to see Dr. Randolph. She was in his office on April 18, \n2023; at the conclusion of that examination, Dr. Randolph recorded: \n“Mary has continued low back pain radiating down into the right leg and \nbuttock almost down to the knee but not below the knee. We did an EMG \nwhich  was normal, and  her  left  decompression has  removed  all  of  the  left \nsided radicular symptoms she was having. Likely her remaining symptoms are \nfrom  her  facet  joint  on  the  right.  Really  my  only  good  answer  for  that  is  a \nlateral lumbar interbody fusion at L5-4. With MIS Psif. Patient is interested \nin proceeding with surgical treatment.” \n \n Respondents  submitted a physician’s advisory report from Dr. Robert Pick who is \nlicensed  to  practice  orthopedic  surgery  in  Maryland,  Massachusetts,  New  York,  and \nTennessee. Dr. Pick did not examine claimant but reviewed thirty-one pages of records, the \n\nCummins-H202188 \n7 \n \n \nbulk  of  which  came  from  Dr.  Randolph.  Reviewing  the  records  and  applying  the Official \nDisability Guidelines to those records that he reviewed, Dr. Pick concluded that the surgery \nrecommended by Dr. Randolph was not necessary. \nADJUDICATION \n  \n The only issue to be decided in this matter is whether claimant is entitled to additional \nmedical  treatment  for  her  compensable  injury of February  23,  2022.  Once  it  has  been \nestablished that a claimant has sustained a compensable injury—which was a stipulation--she \nis not required to offer objective medical evidence to prove entitlement to additional benefits, \nArk. Health Ctr. v. Burnett, 2018 Ark. App. 427, at 9, 558 S.W.3d 408, 414. \n The evidence on this point boils down to whether the testimony of the claimant and \nthe opinion of her treating physician is more persuasive than the report of a doctor who only \nreviewed records provided to him.  I found claimant to be a credible witness as to her current \ncondition.  I further find Dr. Randolph's recommendation is more credible than the opinion \nof Dr.  Pick which  denied that  recommendation; both  Dr.  Randolph and  Dr.  Miedema \nattempted conservative care, and it failed to alleviate claimant’s medical issues.  Therefore, \nclaimant's proof is sufficient to support her request for continued medical treatment for her \ncompensable injury. \n The  final  issue  for  consideration  involves claimant’s request for temporary  total \ndisability  benefits if  she  has  the  recommended  surgery.  As  stated  above, claimant \nacknowledged at  the  hearing that  there  were  no  unpaid  temporary  total  disability  benefits; \ninstead, claimant is simply requesting temporary total disability benefits with respect to the \nsurgery   recommended   by   Dr. Randolph. A claimant   who   suffers   a   non-scheduled \ncompensable injury  is  entitled  to temporary  total  disability  benefits so  long  as she remains \n\nCummins-H202188 \n8 \n \n \nwithin  their  healing  period  and has a  total  incapacity  to  earn  wages.  While  claimant  may \nbecome totally incapacitated at some point in the future, as of the time of the hearing she was \nnot totally incapacitated from earning wages and it would be speculative to award temporary \ntotal disability benefits at this time. Any ruling on future temporary total disability benefits \nwould be speculative and not based upon the evidence of record. Therefore, no temporary \ntotal disability benefits can be ordered at the present time. \n \nORDER \n \nClaimant has met her burden of proving by a preponderance of the evidence that she \nis  entitled  to  additional  medical  treatment  in  the  form  of  surgery  as  recommended  by  Dr. \nRandolph. Claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary total disability benefits as of the date of the hearing. \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 providers \npursuant to A.C.A. § 11-9-715(a)(4). \nRespondent is responsible for paying the court reporter's charges for preparation of \nthe hearing transcript. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n           JOSEPH C. SELF \n          ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202188 MARY CUMMINS, Employee CLAIMANT ACCURATE HEALTHCARE INC., Employer RESPONDENT TRAVELERS INDEMNITY COMPANY, Carrier RESPONDENT OPINION FILED OCTOBER 26, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Ark...","fetched_at":"2026-05-19T23:02:08.344Z","links":{"html":"/opinions/alj-H202188-2023-10-26","pdf":"https://labor.arkansas.gov/wp-content/uploads//CUMMINS_MARY_H202188_20231026.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}