{"id":"alj-H202787-2023-08-21","awcc_number":"H202787","decision_date":"2023-08-21","opinion_type":"alj","claimant_name":"Michael Stroud","employer_name":"Little Rock Water Reclamation Authority","title":"STROUD VS. LITTLE ROCK WATER RECLAMATION AUTHORITY AWCC# H202787 AUGUST 21, 2023","outcome":"affirmed","outcome_keywords":["affirmed:1","dismissed:1","granted:1","denied:1"],"injury_keywords":["back","lumbar","knee","cervical","neck"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/STROUD_MICHAEL_H202787_20230821.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STROUD_MICHAEL_H202787_20230821.pdf","text_length":22267,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H202787 \n \nMICHAEL STROUD,   \nEMPLOYEE                                                    CLAIMANT \n \nLITTLE ROCK WATER RECLAMATION AUTHORITY,   \nEMPLOYER                                                      RESPONDENT \n \nLITTLE ROCK WATER RECLAMATION AUTHORITY,                                 \nCENTRAL ADJUSTMENT CO. \nINSURANCE CARRIER/TPA                                          RESPONDENT \n \n \nOPINION AND ORDER FILED AUGUST 21, 2023 \n \nHearing  conducted  on May  2,  2023,  before  the Arkansas Workers’ Compensation  Commission \n(the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, Pulaski County, \nArkansas.   \n \nThe claimant was represented by the Honorable Tanner Thomas, Rainwater, Holt & Sexton, Little \nRock, Pulaski County, Arkansas.   \n \nThe respondents were represented by the Honorable Karen H. McKinney, The Barber Law Firm, \nLittle Rock, Pulaski County, Arkansas. \n       \nINTRODUCTION \nIn the prehearing order filed March 17, 2022, the parties agreed to the following \nstipulations, which they affirmed on the record at the hearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed  at  all  relevant  times \nincluding  October  4,  2021,  when  the  claimant  alleges  he  tripped  at  work  and \nsustained an injury to his lower back/lumbar spine. \n \n3. The  parties  shall  exchange  wage  records  and  confer  as  soon  as  possible  and  be \nprepared  to  stipulate  to  the  claimant’s  average  weekly  wage  (AWW)  and  the \ncorresponding indemnity benefit rates preferably before or at the hearing. \n \n4. The respondents have controverted this claim in its entirety. \n  \n\nMichael Stroud, AWCC No. H202787 \n \n2 \n \n5. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Commission Exhibit 1 at 1-2; Hearing Transcript at 5). Pursuant to the parties’ mutual \nagreement the issues litigated at the hearing were:   \n1. Whether the claimant sustained a compensable injury within the meaning of the Arkansas \nWorkers’ Compensation Act (the Act) to his lower back/lumbar spine on October 4, \n2021. \n \n2. If the claimant’s alleged injury is deemed compensable, the extent to which he/she is \nentitled to medical and indemnity benefits.   \n \n3. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n4. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n(Commission Exhibit 1 at 2; T. 5). \nThe claimant contends that on October 4, 2021, he tripped and fell on concrete in the course \nand scope of his employment and injured his lower back/lumbar spine. The claimant underwent \nan MRI which revealed disc protrusions with extrusions at L3-4 and L4-5, and he has undergone \nconservative treatment to date. The claimant contends he sustained a compensable injury to his \nlower  back/lumbar  spine  within  the  course  and  scope  of  his  employment,  and  he  is  entitled  to \nmedical treatment, and TTD benefits, and his attorney is entitled to a controverted attorney’s fee. \nThe claimant  reserves  any  and all other issues  for future determination or  litigation. (Comms’n \nEx. 1 at 2-3; T. 5). \nThe respondents contend the claimant has received all benefits to which he is entitled, and \nhe cannot meet the Act’s burden of proof in demonstrating he sustained a lower back/lumbar spine \n\nMichael Stroud, AWCC No. H202787 \n \n3 \n \ninjury on October 4, 2021. The respondents accepted this as a medical only claim. They contend \nthe claimant initially reported his fall as a minor scrape of the elbow and did not request medical \ntreatment until November 2, 2021. The claimant did not report any lower back pain related to the \nsubject fall at work on October 4, 2021. When the claimant finally requested medical treatment \nfrom respondents, he was sent to Concentra on November 2, 2021, where he reported an onset of \nlower  back  pain  that  started  on  a  Saturday,  just  two  (2)  days  before  the  November  2,  2021, \nappointment with Concentra, and he had taken tramadol and hydrocodone pills for this pain. The \nclaimant did not report  any acute injury at  work  or otherwise that prompted this onset of lower \nback pain when he presented himself for medical treatment at Concentra on November 2, 2021. \nThe  claimant  was  diagnosed  with  chronic  lower  back  pain  and  advised  to  follow  up  with  his \ntreating  physician. The  claimant’s treating  physician  opined  he  reached  maximum  medical \nimprovement (MMI), and released him to return to work with no restrictions, and no/zero percent \n(0%)  permanent  anatomical  impairment,  as  a  result  of  the  October  4,  2021,  work  incident. \n(Comms’n Ex. 1 at 3; T. 5).   \nSTATEMENT OF THE CASE \n       The claimant, Mr. Michael Stroud (the claimant), is 62 years old. After serving twice in the \nmilitary  and  having  received  an  honorable  discharge  after  his  first  stint  of  service,  then  a \ndishonorable discharge after his second stint of service for being absent without leave (AWOL), \nthe  claimant  worked  as  a  drywaller,  but  he  testified  the  vast  majority  of  his  work  experience – \nsome  30  years –  has  been  in  the  wastewater  treatment  field.  He  began  working  for  Little  Rock \nWastewater in May of 2013. Little Rock Wastewater is now known as the Little Rock Wastewater \n\nMichael Stroud, AWCC No. H202787 \n \n4 \n \nReclamation Authority (LR Wastewater). (T. 11-14). \n       The claimant testified that in 2014 he was working the night shift in the wintertime and he \nslipped on some ice which had accumulated on the railing on which he was walking, causing him \nto fall and slide three (3) to four (4) feet down some stairs and land on a concrete sidewalk. He \nsaid he turned in an incident report following this slip-and-fall, and took some Tylenol. He testified \nthat  between  the  time  of  this  2014  incident  until  2021  he  had  treated  with  his  personal  care \nphysician (PCP) and she gave him a cortisone shot in, “the affected area” (apparently his lower \nback), and he treated some with his chiropractor, but that was all the treatment he had, “During \nthat time frame.” (T. 16; 15-16).   \n       The work incident that prompted the subject claim occurred on October 4, 2021, when the \nclaimant was working the night shift early in the morning, apparently was alone at the time, and \nwas walking when he tripped over a piece of one of the clamps used to hold down some tubing \nthat was “sticking up” through the concrete walkway. The claimant testified that when he tripped \nhe fell on his right side and hit his back and right arm, scraping his right arm. He said he reported \nthe incident to his supervisor when the supervisor arrived at work a little time later, and that he – \nthe claimant – completed an incident report. The claimant testified when he fell on his right side \nhe felt pain in the area of his lower back which went down into the area of his right buttock. (T. \n16-20; Claimant’s Exhibit 2). \n       The claimant testified he did not immediately go see a doctor after this October 4, 2021, \ntrip-and-fall, but agreed with his attorney he did have an MRI at the White River Health System \non  October  21,  2021.  (T.  20).  The  written  report/interpretation  of  this  MRI  appears  in  the \n\nMichael Stroud, AWCC No. H202787 \n \n5 \n \nclaimant’s medical  exhibit  and  is  self-explanatory. (Claimant’s Exhibit 1 at 1-2).  The  claimant \ntestified  he  never  took  off  work,  but  his  medical  exhibit  reveals  he  did  see  various  medical \nproviders between October 27, 2021 and November 4, 2021. (T. 21-29; CX1 at 3-37). A”Return \nto Work / School” slip dated 11/04/2021 from OrthoArkansas states the claimant may return to \nfull  duty  work  on  11/11/2021,  with  no  restrictions.  (CX1  at  86).  The  claimant  testified  the \ntreatment he has had to  date  has not helped his lower back pain, and it is his understanding the \nnext step in his treatment is surgery, but he does not want to undergo surgery. He explained that \nthe way he understood it, if he underwent surgery at this time he eventually would need to have \nsurgery again at some point in the future. (T. 26; 21-29). The claimant testified his work schedule \nis 12 hours a day for seven (7) days, then he is off work for seven (7) days. He testified he has not \nhad to miss any work, that his back pain limits his ability to engage in personal activities. (T. 28-\n29).      \nDISCUSSION \nThe  claimant  has  failed  to  meet  his  burden  of  proof  in  demonstrating  he  sustained  a \n“compensable injury” within the Act’s meaning to his lower back/lumbar spine as a result \nof the October 4, 2021, work incident. \n \nThe Burden of Proof \n \n     For   any   specific-incident   injury   to   be   compensable   the   claimant   must   prove   by   a \npreponderance of the evidence that his injury: (1) arose out of and in course of his employment; \n(2) caused internal or external harm to his body that required medical services; (3) is supported   \nby objective findings, medical evidence, establishing the alleged injury; and (4) was caused by a \nspecific incident identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4) (2022 \n\nMichael Stroud, AWCC No. H202787 \n \n6 \n \nLexis  Replacement); Cossey  v.  Gary  A.  Thomas  Racing  Stable,  2009  Ark.  App.  666,  at  5,  344 \nS.W.3d  684,  687  (Ark.  App.  2009).  Of  course,  the  claimant  bears  the  burden  of  proving  the \ncompensable  injury  by  a  preponderance  of  the  credible  evidence. Ark.  Code  Ann.  §  11-9-\n102(4)(E)(i) (2022 Lexis Repl.); and Cossey, supra.   \n     “Objective findings” are those findings which cannot come under the voluntary control of the \npatient. Ark. Code Ann. § 11-9-102(16)(A) (2022 Lexis Repl.); Long v. Wal-Mart Stores, Inc., 98 \nArk. App. 70, at 80 250 S.W.3d 263, at 272 (Ark. App. 2007). Objective findings, “specifically \nexclude such subjective complaints or findings such pain, straight-leg-raising tests, and range-of-\nmotion tests.” Burks  v.  RIC,  Inc.,  2010  Ark.  App.  862  (Ark.  App.  2010).  Objective  medical \nevidence is not essential to establish a causal relationship between the work-related accident and \nthe alleged injury where objective medical evidence exists to prove the existence and extent of the \nunderlying  injury,  and  a  preponderance  of  other  nonmedical  evidence  establishes  a  causal \nrelationship  between  the  objective  injury  and  the  work-related  incident(s)  in  question. Flynn  v. \nSouthwest Catering Co., 2010 Ark. App. 766, 379 S.W.3d 670 (Ark. App. 2010). Moreover, the \nclaimant must prove a causal relationship exists between her employment and the alleged injury. \nWal-Mart Stores, Inc., v. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (Ark. App. 2002) \n(citing McMillan v. U.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (Ark. App. 1997)).   \n     Concerning the proof required to demonstrate the aggravation of a preexisting condition, our \nappellate courts have consistently held that since an aggravation is a new injury, a claimant must \nprove it by new objective evidence of a new injury different than the preexisting condition. Vaughn \nv. Midland School Dist., 2012 Ark. App. 344 (Ark. App. 2012) (citing Barber v. Pork Grp., Inc., \n\nMichael Stroud, AWCC No. H202787 \n \n7 \n \n2012 Ark. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. 130, 382 \nS.W.3d 1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 (Ark. App. \n2010)  (Emphases  added).  Where  the  only  objective  findings  present  are  consistent  with  prior \nobjective  findings or  consistent  with  a  long-term  degenerative  condition  rather  than  an  acute \ninjury, this does not satisfy the objective findings requirement for the compensable aggravation of \na preexisting condition injury. Vaughn, 2012 Ark. App. 344, at 6 (holding that Arkansas courts \nhave interpreted the Act to require “new objective medical findings to establish a new injury when \nthe  claimant seeks  benefits  for  the  aggravation  of  a  preexisting  condition”); Barber,  supra \n(affirming the Commission’s denial of an aggravation of a preexisting condition claim where the \nMRI  findings  revealed  a  degenerative  condition,  with  no  evidence  of,  and  which  could  not  be \nexplained  by,  an  acute  injury)  (Emphases  added.).  In Mooney,  2010  Ark.  App.  600  at  4-6,  378 \nS.W.3d at 165-66 (Ark. App. 2010), the court affirmed the Commission’s decision denying a back \ninjury claim where the objective evidence of an injury - including muscle spasms, positive EMG \ntest results, and spinal stenosis revealed on an MRI  - were  all present both before and after the \ndate of the alleged aggravation injury. (Emphasis added). \n      Both  attorneys  did  an  excellent  job  presenting  their  respective  client’s  positions  and \ninterests. However, based on the aforementioned law as applied to the facts of this case, and the \ntotality of the credible evidence of record – both in the form of the claimant’s own testimony and \nthe medical records – I am compelled to find the claimant has failed to meet his burden of proof \nin demonstrating he sustained a lower back/lumbar spine injury as a result of the March 4, 2021, \nwork incident. Indeed, the preponderance of both the claimant’s own testimony and the relevant \n\nMichael Stroud, AWCC No. H202787 \n \n8 \n \nmedical evidence conclusively demonstrate the claimant’s lower back pain/lumbar spine condition \nwas degenerative in nature, and was both preexisting and symptomatic long before the October 4, \n2021, work incident.   \n       As  the  record  readily  reveals,  the  respondents’  attorney’s  cross-examination  of  the \nclaimant proved to be quite effective and, especially when read in conjunction with the relevant \nmedical records, conclusively demonstrates the claimant’s lower back pain/lumbar spine condition \nwas  clearly  degenerative  in  nature  and  not  the  result  of  any  injury,  was  preexisting,  and  was \npatently symptomatic – and apparently fairly painful – long before the subject October 4, 2021, \nwork incident. The following evidence of record supports my opinion in this regard.    \n        First,  on  cross-examination  the  claimant  admitted  that  when  he  himself  completed,  in \nhis own handwriting, the initial incident report a couple of hours after the October 4, 2021, subject \ntrip-and-fall, he stated only that he, “scraped right arm at elbow landed on right side”; but he never \nmentioned having injured his lower back. (CX1 at 1; T. 29-32). Indeed, even a cursory review of \nthe report reveals that while he certainly had an opportunity to state he had injured his lower back \nin the fall since he himself was the one who completed the report, signed it, and dated it in his own \nhandwriting,  he  never  even  mentions  his  lower  back,  nor  having  injured  it  as  a  result  of  the \nincident.   \n       Second, concerning the 2014 slip-and-fall – which, of course, occurred some seven  (7) \nyears  before  the  subject  October  4,  2021,  incident,  and  for  which  the  claimant  never  filed  a \nworkers’ compensation claim – the claimant admitted no incident report existed for this incident, \nalthough he said he completed one. The claimant also admitted he had not received any medical \n\nMichael Stroud, AWCC No. H202787 \n \n9 \n \ntreatment following the 2014 incident, nor did he file a workers’ compensation claim alleging a \ncompensable work injury. (T. 32-33). \n       Third,  the  respondents’  medical  exhibit  contains  medical  records  from  April  27,  2020, \nthrough  September  14,  2021  (and  this  latter  date  was  some  three  (3)  weeks  before  the  subject \nOctober 4, 2021, incident) contains numerous medical records where the claimant has presented \nhimself  to  healthcare  providers  for  evaluation  and  treatment  of  leg,  knee,  and  right-sided  lower \nback pain radiating into the area of his right buttock. (Respondents’ Exhibit 1 at 1-29).  The \nclaimant admitted on cross-examination he had presented himself to his own PCP for evaluation \nand treatment of  right-sided lower back pain that the claimant described as seven (7) out of ten \n(10), and nine (9) out of ten (10) on a pain scale of one (1) to ten (10). The claimant admitted he \nhad received steroid injections in the area of his lumbar spine, and chiropractic adjustments by two \n(2) different chiropractors (apparently a mother and a daughter, both of whom were chiropractors) \nin the area of both his lumbar and cervical spine. (T. 34-37).   \n       Medical and chiropractic reports during the aforementioned time period from April 2020 \nthrough September 2021contain numerous references to lower back pain, neck pain, right-sided \nlower back pain radiating into the claimant’s right leg, and list an onset date of “02/14/2016” for \nthe “low back pain.” (RX1 at 1-29; 3). A clinic note dated May 28, 2020, states, “No injury”; notes \nthe location of the claimant’s pain to be his, “lower back; lower back and leg pain; chronic knee \npain bilateral; leg pain bilateral.” (RX1 at 4). Among the medications the claimant was prescribed \nand  taking  in  April  of  2020  were  meloxicam  (an  anti-inflammatory  often  prescribed  for \ndegenerative  and  arthritic  conditions),  and  tizanidine  (a  muscle  relaxant  used  to  treat  muscle \n\nMichael Stroud, AWCC No. H202787 \n \n10 \n \nspasms, and even muscle spasms related to multiple sclerosis). (RX1 at 2).   \n       Significantly, and perhaps most revealing, are the medical and chiropractic records from \nMarch 3, 2021, through September 14, 2021, which, again, conclusively demonstrate the claimant \nreceived steroid injections for what he described as significant lower back pain, which the claimant \nadmitted. For example, the March 3, 2021, chiropractic report of Tonya Holt states the onset of \nthe claimant’s “lumbar,  right  lumbar,  right  sacroiliac,  sacral,  right  pelvic,  right  buttock  right \nposterior leg and right posterior knee” discomfort and began “years ago after he fell and landed on \nhis rt side...then it came back about 3 weeks ago. (RX1 at 6; 6-29; T. 34-37). Indeed, and once \nagain, the respondents’ medical exhibit is replete with  such  references  to  both  the  location  and \nseverity of the claimant’s right-sided, radiating lower back pain and treatment which existed long \nbefore the subject October 4, 2021, work incident. The claimant himself admitted these facts when \nconfronted with them on cross-examination. (RX1 at 1-29; T. 30-47). Moreover, a medical record \nfrom the White River Health System dated October 27, 2021 – which was over three (3) weeks \nafter the date of the subject alleged lower back/lumbar spine injury – as being “10/02/2017”. Of \ncourse, this is almost four (4) years before the date of the subject October 4, 2021, alleged lower \nback/lumbar spine injury. (RX1 at 38; 36-42). \n       Fourth, and finally, there exists no physician’s opinion stated within a reasonable degree \nof medical certainty. In fact, the MRI results of October 21, 2021, reveal no evidence of an acute, \nspecific-incident injury, but reveal only degenerative changes in the claimant’s lumbar spine which \nare  consistent  with  his  longstanding  symptoms  of  lower  back  pain  which  radiated  into  the \nclaimant’s right buttock and right leg that existed well before the date of the subject October 4, \n\nMichael Stroud, AWCC No. H202787 \n \n11 \n \n2021,  work  incident.  In  addition,  on  these  facts  and  in  this  case,  the  narrative  report  of  Dr. \nTheodore Hronas, a radiologist certified by the American Board of Radiology, is instructive. (RX1 \nat 68-69). In his fully-informed, well-written narrative report, Dr. Hronas accurately summarizes \nthe claimant’s entire relevant medical history and opines within a reasonable degree of medical \ncertainty that the claimant’s October 21, 2021, MRI  reveals  merely  degenerative  changes  not \nunusual for a man of his age and that, “there are no objective findings of either a remote or recent \ninjury... .” (RX1 at 69). This is a health insurance claim, not a workers’ compensation claim, and \nthe claimant has submitted his related medical bills to his health insurance carrier which has paid \nfor his treatment.   \n          Therefore, for all the aforementioned reasons, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The  stipulations  contained  in  the  prehearing  order  filed  March  27,  2022, \nwhich the parties affirmed on the record at the hearing, hereby are accepted \nas facts. \n \n2. The  claimant  has  failed  to  meet  his  burden  of  proof  in  demonstrating  he \nsustained a “compensable injury” within the Act’s definition to his lower \nback pain/lumbar spine on October 4, 2021.   \n \n3. The preponderance of the evidence – including the relevant medical records \nand his own admissions on cross-examination – conclusively demonstrate \nthe claimant’s lower back pain/lumbar  spine  condition is  degenerative  in \nnature,  was  longstanding,  and  admittedly  symptomatic well  prior  to  the \nsubject  work  incident  of  October  4,  2021.  In  summary,  there  exists  no \nobjective medical evidence of any specific-incident injury to the claimant’s \nlower  back/lumbar  spine  occurring  on  October  4,  2021,  as  the  claimant \ncontends.   \n \n \n4. The claimant’s attorney is not entitled to a fee on these facts.  \n\nMichael Stroud, AWCC No. H202787 \n \n12 \n \n       WHEREFORE,  for  all  the  aforementioned  reasons,  I  hereby  am  compelled  to  deny  and \ndismiss this claim. If the respondents have not already done so, they shall pay the court reporter’s \ninvoice within twenty (20) days of their receipt of this opinion and order.     \nIT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202787 MICHAEL STROUD, EMPLOYEE CLAIMANT LITTLE ROCK WATER RECLAMATION AUTHORITY, EMPLOYER RESPONDENT LITTLE ROCK WATER RECLAMATION AUTHORITY, CENTRAL ADJUSTMENT CO. INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED AUGUST 21, 2023 Hearing conducted...","fetched_at":"2026-05-19T23:04:09.662Z","links":{"html":"/opinions/alj-H202787-2023-08-21","pdf":"https://labor.arkansas.gov/wp-content/uploads/STROUD_MICHAEL_H202787_20230821.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}