{"id":"alj-H202652-2024-02-28","awcc_number":"H202652","decision_date":"2024-02-28","opinion_type":"alj","claimant_name":"Joseph Powell","employer_name":"Structurlam Mass Timber U.S., Inc","title":"POWELL VS. STRUCTURLAM MASS TIMBER U.S., INC. AWCC# H202652 FEBRUARY 28, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["neck","cervical"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/POWELL_JOSEPH_H202652_20240228.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"POWELL_JOSEPH_H202652_20240228.pdf","text_length":14004,"full_text":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H202652 \n \n     \n \nJOSEPH WAYNE POWELL,   \nEMPLOYEE                                     CLAIMANT \n \nSTRUCTURLAM MASS TIMBER U.S., INC.,   \nEMPLOYER                                                     RESPONDENT \n \nEMPLOYERS INS. CO. OF WAUSAU/ \nLIBERTY MUTUAL INS. CO.,   \nINS. CARRIER/TPA                                         RESPONDENT \n \n \n \nOPINION AND ORDER FILED FEBRUARY 27, 2024, GRANTING RESPONDENTS’ \nMOTION FOR AN INDEPENDENT MEDICAL EVALUATION (IME) \n \nIn lieu of a hearing, and pursuant to the parties’ mutual agreement, the single issue set forth below \nwas  submitted  for  decision  to  the  Arkansas  Workers’  Compensation  Commission  (the \nCommission), Administrative Law Judge (ALJ) Mike Pickens, on the record.     \n \nThe  claimant  is  represented  by  the  Honorable  Gary  Davis,  Gary  Davis  Law  Firm,  Little  Rock, \nPulaski County, Arkansas. \n \nThe respondents are represented by the Honorable David C. Jones, Newkirk & Jones Law Firm, \nLittle Rock, Pulaski County, Arkansas. \n \nINTRODUCTION AND BRIEF FACTUAL BACKGROUND \n \n The ALJ filed an amended prehearing order on February 26, 2024. In lieu of a hearing the \nparties  mutually  agreed  to  submit  the  single  issue  in  dispute  at  this time –  namely,  whether  the \nALJ should grant the respondents’ motion for a second opinion or IME – for decision based on the \nrecord, which is enumerated in more detail, infra.   \n\nJoseph Wayne Powell, AWCC No. H202652 \n \n2 \n \n     In the amended prehearing order filed February 26, 2024, the parties agreed to the following \nstipulations: \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has \n  jurisdiction over this claim. \n \n2. The employer/employee/carrier-TPA relationship existed with the claimant at all \nrelevant times including February 4, 2022, when the claimant sustained an \nadmittedly compensable injury to his head and his neck/cervical spine for which \nthe respondents paid medical and indemnity benefits, which included payment for \none (1) cervical spine surgical procedure. \n \n3. The claimant’s average weekly wage (AWW) is $744.18 which is sufficient to \nentitle her to weekly compensation rates of $496.00 for temporary total disability \n(TTD) and $372.00 for permanent partial disability (PPD) benefits. \n \n4. The  respondents  have  to  date  controverted  only  the  claimant’s  request  for  the \nsubject second cervical spine surgery Dr. Gallagher has recommended. \n \n5. The parties specifically reserve any and all other issues for future determination \nand/or litigation. \n \n(Commission Exhibit 1 at 2). Pursuant to the parties’ mutual agreement the sole issue to be \ndecided at this time is: \n \n1. Whether  the  respondents  are  entitled  to  an  IME  concerning  whether  the  second \ncervical  spine surgical  procedure the claimant’s  treating physician, Dr. Gallagher, \nhas recommended is related to and reasonably necessary in light of the claimant’s \nFebruary 4, 2022, admittedly compensable head and neck/cervical spine injuries. \n \n2. The  parties  specifically  reserve  any  and  all  other  issues  for  future  determination \nand/or litigation. \n \n(Comms’n Ex. 1 at 2). \n \n\nJoseph Wayne Powell, AWCC No. H202652 \n \n3 \n \n       In their motion for a second opinion or IME formally filed with the Commission on January \n26, 2024 (the motion for an IME, or the subject motion), the respondents contend they are entitled \nto  a  second  opinion  or  IME  concerning  whether  the  second  cervical  surgery  Dr.  Gallagher  has \nrecommended  is  related  to  and  reasonably  necessary  for  treatment  of the  claimant’s admittedly \ncompensable  neck/cervical  spine  injury  of  February  4,  2022. (Comms’n  Ex.  1  at 3;  and see \nrespondents’ motion).   \n     In his response to  the respondents’ motion  (the response, or the claimant’s response) filed \nwith the Commission on February 12, 2024, the claimant contends the respondents are not entitled \nto a second opinion or IME in this case since, prior to initially taking a position controverting the \nsurgery in question, they requested a utilization or peer review from a Dr. Andrew Jackson, a board- \ncertified orthopedic surgeon associated with MediCall. MediCall is associated with Liberty Mutual \nManaged  Care,  LLC,  Utilization  Management  and  is  based  in  Wausau,  Wisconsin.    As  the \nclaimant’s attorney cleverly, humorously, and correctly points out in the claimant’s response to the \nrespondents’ motion, Dr. Andrew Jackson shares his name with the seventh (7\nth\n) President of the \nUnited  States  (POTUS);  however,  Dr.  Andrew  Jackson  is  not  licensed  to  practice  medicine  in \nArkansas. (Comms’n Ex. 1 at  3;  and see Exhibit A to  the claimant’s  response). Dr. Jackson  has \nopined that the cervical surgery Dr. Gallagher has recommended is, “non-certified.” (Id.)   \n     To  date  it  appears  from  the  record,  as  explained  in  more  detail  below,  no  independent, \nobjective, Arkansas-licensed medical doctor who specializes in the diagnosis and treatment of the \ncervical spine has as yet had the opportunity to examine the claimant’s relevant medical records, or \nto visit with and personally examine Dr. Gallagher’s proposed second cervical spine surgery in order \n\nJoseph Wayne Powell, AWCC No. H202652 \n \n4 \n \nto  opine  whether  the  proposed  surgery  is  related  to  or  reasonably  necessary  in  light  of    the \nclaimant’s admittedly compensable February 4, 2022, head and neck/cervical spine injuries. \n     The record herein  consists of the following documents: (1) the amended prehearing order \nfiled  February  26,  2024,  marked  as  Comms’n  Ex. 1;  (2) the  respondents’  motion  for  a  second \nopinion  or  IME,  and  the  medical  records  attached  thereto  as  Respondents  Exhibit  1;  (3)  the \nclaimant’s  response  to the respondents’  motion,  and  the  medical  exhibit  attached  thereto  as \nClaimant’s Exhibit 1A; and the respondents’ reply email dated Tuesday, February 20, 2024.   \nDISCUSSION \n     Ark. Code Ann. §11-9-511(a) (2023 Lexis Replacement) states: \nAn injured employee claiming to be entitled to compensation shall \nsubmit  to  such  physical  examination  and  treatment  by  another \nqualified  physician,  designated  or  approved  by  the  Workers’ \nCompensation  Commission,  as  the  Commission may  require  from \ntime to time if reasonable and necessary. \n \n(Emphasis added). And see, e.g., Diggs v. Cattlemen’s Livestock Mkt., Inc., 2009 Ark. App., 306 \nS.W.3d 20 (2009). Consequently, the Act and relevant precedent make it abundantly clear the ALJ \nhas  the  authority  pursuant  to  the  aforementioned  statute  to  grant  a party’s  – or  the  parties’  –   \nrequest, or requests, for an IME; and/or to order an IME on his own initiative if the ALJ deems the \nIME to be, “reasonable and necessary” under the circumstances of a particular claim.   \n    In  this  case,  I  do  find  that  an  IME  with  an  independent,  objective,  Arkansas-licensed \nphysician is not only reasonable and necessary on these facts, it will serve to provide more details, \nand a helpful if not necessary – additional perspective concerning the proposed surgery in question.     \n     The claimant contends the respondents are not entitled to a second opinion or an IME since \n\nJoseph Wayne Powell, AWCC No. H202652 \n \n5 \n \nDr.  Andrew  Jackson  has  deemed  Dr.  Gallagher’s  proposed  surgery  to  be,  “non-certified.” \nHowever,  while  a  physician  associated  with  the  respondents’  own  utilization  management \ncompany  reviewed  medical  records  and  determined  from  them  that  Dr.  Gallagher’s  proposed \nsecond cervical spine surgery does not meet the respondents’ certification standards may give the \nrespondents’  a  cognizable  reason  to  question  and/or  controvert  the  proposed  surgery,  such  a \nutilization review in and of itself is insufficient on these facts to assist in informing either party or \nthe  Commission –  specifically,  the  ALJ  herein – concerning whether Dr. Gallagher’s proposed \nsecond cervical spine surgical procedure is either related to or reasonably necessary in light of the \nthe claimant’s compensable neck/cervical spine injury.  \n     Indeed, as the respondents’ attorney points out in his email reply of February 20, 2024, it \nappears from the medical records contained in RX1 the claimant has a history of past cervical spine \nand related problems that no independent, clearly objective Arkansas-licensed physician has yet \nhad an opportunity to review and consider in light of Dr. Gallagher’s recommendation for a second \ncervical  spine  surgery.  These  facts  and  the  applicable  law  compel  me  to  find  that  a  new, \nindependent,  objective,  Arkansas-licensed  cervical  spine  specialist’s  review  of  the  claimant’s \nrelevant  medical  records,  as  well  as  a  new  physician  having  the  opportunity  to  visit  with  and \nconduct  an  in-person  examination  of  the  claimant  for  the  purpose  of  providing  an  independent, \nobjective opinion as to whether the second cervical spine surgery the claimant’s chosen physician, \nDr. Gallagher, has recommended is related to and reasonably necessary in light of the claimant’s \nadmittedly  compensable  head  and  neck/cervical  spine  injuries  of  February  4,  2022,  is  not  only \nreasonable and necessary on these facts and the totality of the record herein, it is also in the very \n\nJoseph Wayne Powell, AWCC No. H202652 \n \n6 \n \nbest  interest  of  the  claimant.  And  it  may  very  well  provide  the  respondents  the  additional \ninformation they require to make an informed decision based on the applicable Arkansas workers’ \ncompensation  law –  and  not  a  peer  review/utilization  management  medical  records  review  that \nonly addressed whether the proposed surgery met the respondent’s certification review standards \n–  as  to  whether  the  proposed  surgery  is  related  to  and  reasonably  necessary  in  light  of  the \nclaimant’s admittedly compensable injury. Finally, it will definitely serve to help assist and inform \nthe  Commission  as  to  whether  the  recommended  surgery  complies  with  the  applicable  legal \nstandard and, significantly, whether it is more likely than not to be beneficial to the claimant rather \nthan ineffective – or even harmful to him.   \n     In this claim the ALJ is well within the rather broad discretionary authority the Act provides \nto order an IME in cases such as the one at bar.  Therefore, for all the reasons set forth above, I \nhereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Commission has jurisdiction over this claim. \n2. The stipulations to which the parties agreed are set forth in the amended prehearing order \nfiled February 26, 2024, and hereby are accepted as facts. \n   \n3. The respondents’ motion for an IME is GRANTED pursuant to the Commission’s authority \nto order an IME(s) as set forth in Ark. Code Ann. § 11-9-511. I specifically find an IME to \nbe both reasonable and necessary since it will allow an independent, objective, Arkansas-\nlicensed physician and spine specialist to render what is in essence a second opinion for \nthe edification and benefit of both the claimant and the respondents.   \n \n4. I find Dr. Zachary Mason, a neurosurgeon, to be an  appropriate physician to perform an \nIME  in  this  case.  Therefore,  subject  to  his  agreeing  to  conduct  an  IME  herein  I  hereby \nappoint Dr. Zachary Mason, a neurosurgeon with Neurological Surgery Associates, 5201 \n\nJoseph Wayne Powell, AWCC No. H202652 \n \n7 \n \nNorthshore  Drive,  Suite  100,  North  Little  Rock,  Arkansas  72118  as  the  IME  physician. \nMoreover, I respectfully request Dr. Mason agree to be the IME physician herein, and that \nhe examine any and all relevant medical records including, but not limited to, diagnostic \nfilms, and any other relevant test results relating to the claimant’s cervical spine condition, \nand  to  personally  visit  with, examine, and evaluate the claimant’s  current  cervical  spine \ncondition  in  order  to  determine  whether  the  proposed  second  surgical  procedure  Dr. \nGallagher  has  recommended  is  related  to  and  reasonably  necessary  in  light  of  the \nclaimant’s admittedly compensable injury of February 4, 2022. \n \n5. This  IME  shall  in  all  respects  be  governed  by  and  conducted  in  accordance  with  the \napplicable provisions of Arkansas law set forth above in Paragraph 3 of these “Findings of \nFact and Conclusions of Law”. The parties shall submit a copy of this IME order to Dr. \nMason,  along  with  any  and  all  relevant  medical  records  including  but  not  limited  to  the \noriginal media of any and all relevant diagnostic test results, as well as any and all other \nrelevant  medical  records  or  other  documents,  if  any,  they  want  Dr.  Mason  to  review  in \norder to inform and render his opinion herein. \n \n6. The parties shall in all respects cooperate in scheduling the date and time of the IME with \nDr.  Mason,  and  in  providing  Dr.  Mason  with  copies  of  all  the  records  set  forth  in  the \nimmediately preceding Paragraph 5. \n \n7. If  for  some  reason  Dr.  Mason  is  unavailable  and/or  unwilling  to  conduct  the  IME,  the \nparties  shall  communicate  and  attempt  to  agree  on  an  Arkansas-licensed  orthopedic \nsurgeon or neurosurgeon who specializes in the diagnosis and treatment of cervical spine \nconditions to conduct the IME.   \n \n8. If the parties are unable to agree on a physician, they shall jointly agree on and submit a \nlist containing the names of four (4) physicians who have the qualifications and expertise \nas  set  forth  in  Paragraph  6, supra,  and  the  ALJ  will  choose  an  IME  physician  from  the \nparties’ list.    \n \n \nIT IS SO ORDERED. \n \n \n        Mike Pickens \nAdministrative Law Judge \n \n \n \nMP/mp","preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202652 JOSEPH WAYNE POWELL, EMPLOYEE CLAIMANT STRUCTURLAM MASS TIMBER U.S., INC., EMPLOYER RESPONDENT EMPLOYERS INS. CO. OF WAUSAU/ LIBERTY MUTUAL INS. CO., INS. CARRIER/TPA RESPONDENT OPINION AND ORDER FILED FEBRUARY 27, 2024, GRANTING RESPONDENTS’ MOTI...","fetched_at":"2026-05-19T22:57:52.050Z","links":{"html":"/opinions/alj-H202652-2024-02-28","pdf":"https://labor.arkansas.gov/wp-content/uploads/POWELL_JOSEPH_H202652_20240228.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}