{"id":"alj-H203473-2023-08-31","awcc_number":"H203473","decision_date":"2023-08-31","opinion_type":"alj","claimant_name":"Patrickj Austen","employer_name":"Lowe’s Home Centers LLC","title":"AUSTEN VS. LOWE’S HOME CENTERS LLC AWCC# H203473 AUGUST 31, 2023","outcome":"unknown","outcome_keywords":[],"injury_keywords":["back","hip","hernia","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//AUSTEN_PATRICKJ_H203473_20230831.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"AUSTEN_PATRICKJ_H203473_20230831.pdf","text_length":21859,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H203473 \n \nPATRICK J. AUSTEN, Employee                                                                               CLAIMANT \n \nLOWE’S HOME CENTERS LLC, Employer                                                        RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC., Carrier                    RESPONDENT \n \n OPINION FILED AUGUST 31, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by RANDY P. MURPHY, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On July 6, 2023, the above captioned claim came on for a hearing at Springdale, Arkansas.  A \npre-hearing conference was conducted on April 19, 2023, and a pre-hearing order was filed on April \n21,  2023.    A  copy  of  the pre-hearing order with modifications has been marked as Commission’s \nExhibit #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 July 12, 2019. \n 3.   Claimant sustained a compensable injury on July 12, 2019.  \n At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.  Whether claimant is entitled to medical treatment as recommended by Dr. Blankenship.  \n All other issues are reserved by the parties. \n The claimant contends that “he is entitled to surgery as recommended by Dr. Blankenship.”  \n\nAusten-H203473 \n2 \n \n The respondents contend that “The proposed surgery is not reasonable, necessary, and related \nto the compensable injury.” \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 claimant \nand  to  observe  his demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance 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 on August \n19, 2023, and contained in a pre-hearing order filed April 21, 2019, as modified, are hereby accepted \nas fact. \n 2. Claimant has met his burden of proof by a preponderance of the evidence that he is entitled \nto additional medical benefits from Dr. James Blankenship for his compensable back injury. \n FACTUAL BACKGROUND \n Before the hearing began, there were a couple of changes to the Prehearing Order.  As the \nonly matter to be tried was the claimant’s entitlement to additional medical benefits, the issue regarding \nclaimant’s compensation rate was reserved.  Also, claimant had  included  in his  contentions that  he \nwas entitled to the “medical treatment as recommended by Dr. Tonymon and Dr. Blankenship,” but \namended that contention at the hearing to delete the recommendation by Dr. Tonymon.   \n Respondent had contended in the Prehearing Order that it would “likely have an independent \nmedical  examination conducted  to  obtain  a  second  opinion regarding  the  proposed  surgery.”  \nRespondents  submitted  a  review  of  the  records by  Dr.  Owen  Kelly  as that second  opinion,  and \ntherefore that contention was not pursued at the hearing.  \n \n\nAusten-H203473 \n3 \n \n \nHEARING TESTIMONY  \n \n Claimant was the only witness called by either party. He testified that he had worked at Lowe’s \nsince June 2017 as an assistant to the delivery driver. On July 12, 2019, he had loaded a refrigerator \non the lift gate of the truck; when he jumped in the truck to go to the next stop, he felt a pain in his \nright side, which he also felt in his groin, hip, and lower back. Although he finished the day working, \nthe pain intensified throughout the night and the next morning he reported it to his supervisor. He \nwas first treated at MedExpress for what was believed to be a groin tear, and then a hernia before he \nwas referred to Dr. Luke Knox. Dr. Knox then referred claimant to Camp Interventional Pain, where \nhe was treated by both Dr. Nicholas Camp and Dr. Nicholas Boris. During the time he was being \ntreated at Camp Interventional Pain, he said his condition remained constant throughout, with some \nbenefit from the treatment from Dr. Boris. During that time, he continued to work in the delivery \ndepartment at Lowe’s, but his job duties changed to where he was transitioned from in-home delivery \nto a coordinator’s role, which was primarily a desk job. Claimant was able to do the in-home delivery \njob  without restrictions  while  he  was  going  to  the  chiropractor.  If  he  had  an  especially  rough  day, \nclaimant would take the medicine prescribed by Dr. Camp. \n Claimant discovered that the desk job brought on more issues for his back because he had \ntrouble sitting for an extended period. As of the date of the hearing, claimant said he had not had any \nnew injuries since July 2019, and that the pain is constant. “I am almost always in some kind of pain, \nbut the location has moved around a little bit, but it is always concentrated in my lower back, my hip, \nor kind of in my groin area.” Claimant believes that his condition is gradually getting worse and that \nhe had done the conservative treatment route but was still having an issue with his back. He hoped to \nhave it fixed once and for all. \n Claimant voluntarily left Lowe’s because the desk job was harder on him, and he didn’t enjoy \n\nAusten-H203473 \n4 \n \n \nthe  work  as  much  as  doing  deliveries.  He then worked  at  Fresh  Market  in Rogers  in  receiving and \nstocking shelves, which was lighter work than appliance delivery.  \n Claimant  testified  that  he  had  not  had  problems  with  his lower back  before  July  2019,  but \naffirmed he had been seen by Dr. Knox in January 2019 for an upper back issue that resulted from a \nnon-work-related injury. Claimant said he was released in May 2019 and had been working his regular \nduty at Lowe’s between the time he was released and July 12, 2019. He believed the injury in July 2019 \nwas in a different part of his back than the one from earlier in the year.  \n On cross-examination, claimant explained that in January 2019 he was lifting a dresser for a \nfriend and felt some pinching and burning in his back. Dr. Knox referred him to physical therapy and \nrecommended claimant purchase an inversion table. Claimant said staying upside down was difficult. \nClaimant was not aware that the injections he received after the July 2019 incident were at the L1-L2 \nlevel, which was the same area treated after he injured himself in January 2019. \n Claimant was asked about a statement he gave on July 13, 2019, in which he said, “I am not \nsure what exactly happened or when it happened.” He went on to say, “Like I said, yeah, I went to \nwork that morning feeling fine and somewhere after the stuff that I had mentioned before when I \njumped into truck, that’s when everything started.” Claimant agreed that the pain that he felt when he \nwas first seen at MedExpress was in the lower right quadrant in the abdomen and down into the right \ntesticle. He did not recall saying there was no back pain. Claimant said he left employment at Lowe’s \nin May 2022 and began working at Fresh Market.  As of about two weeks before the hearing claimant \nwas only working weekends for Fresh Market, because he had accepted employment with a company \ncalled Tesseract, working in the shipping and receiving department. Claimant admitted that he does \nsome lifting in active duty for Tesseract. Claimant said he did not remember having any symptoms in \nhis mid-back after the incident at Lowe’s, as the issues have been primarily in his hip, lower back, and \n\nAusten-H203473 \n5 \n \n \ngroin area. \n Claimant understood the surgery proposed by Dr. Blankenship was for L4-L5, the lower back. \nHe did not recall any conversation with Dr. Knox following the January 2019 incident about needing \nsurgery  in  the  future.  Claimant said  the  nerve  blocks  he  received  after  the  July  2019 injury helped \nsome, but he did not recall ever being pain free. \n On redirect-examination, claimant recalled that he had a jet ski accident which for several days \nupped the pain but then it “Probably went back to where it was before the accident.” Regarding Page \n4 of Claimant’s Non-Medical Exhibit, which was the initial injury report to Lowe’s, claimant said that \nit wasn’t done in his handwriting. The manager on duty recorded “Patrick came to me explaining he \nhad pain in the groin area. He is unsure where it happened but started around 12:30 to 1:00 the area \nstarted to cause pain.” When the form requested claimant describe the injury in detail, it was recorded \n“Pain in the area stated to occur after working for a while. Unsure of cause other than lifting product.”  \n On recross-examination, claimant did not remember telling Dr. Blankenship, “Dr. Knox told \nhim he would probably wind up having to have surgery.” Claimant did recall Dr. Blankenship talking \nto him about an instability in his back. The cross-examination concluded with this exchange: \nQuestion (by Mr. Murphy): Dr. Blankenship wrote “Again the rationale for \noffering  an  arthrodesis  in  this  patient  is  to  correct  his  flat  back  along  with \ncorrecting his retrolisthesis and his segmental instability.” You understand he \ntalked to you about some instability in your back? \nAnswer (by the claimant): Yes. \n \nQ: Ok, and by the time you got to see Dr. Blankenship and he went over the \nMRI’s, including one that I think was done in 2022, you were having problems \nat L4-5. You believe you had those all along since July 2019; is that right? \nA: That is correct. \n \nREVIEW OF THE EXHIBITS \n \n The parties submitted over three hundred pages of medical records with very little duplication. \nThis review will attempt to summarize those records in chronological order.  \n\nAusten-H203473 \n6 \n \n \n Consistent with claimant’s testimony, he was first seen at MedExpress for three visits in July \n2019 and then was referred to Dr. Robert Petrino. Dr. Petrino determined that claimant did not have \na  hernia  and  referred  him  to  Dr.  Luke  Knox.  (R.X.1-16)  Following  his  first  visit  with  Dr.  Knox, \nclaimant was placed on a fifteen-pound lifting restriction for one month and was to be reevaluated \nafter an MRI.  Dr. Knox’s records of September 16, 2019, included his entries for April 12, 2019, and \nMay 14, 2019, which were from the treatment of the January, 2019 injury. Claimant was released to \nfull duty on May 14, 2019. (R.X.19) The x-ray report noted degenerative changes at L3-4, L4-5, and \nL5-S1. (R.X.22) \n An MRI was performed on September 30, 2019, and the impression was:  \n“Lower lumbar  predominant  spondylosis, worse  at  L4-5  and  L5-S1  levels. \nThere is severe right sided foraminal stenosis at L5-S1 level which could result \nin impingement on the existing right L5 nerve root.” (R.X.23 & 24) \n \nThere was no mention of any issues at L1-L2 in the MRI report.  \n \nDr. Knox saw claimant again on October 8, 2019.  His record referred to the MRI as “Noted \nto have foraminal disc at L1-L2 on the right.’ Dr. Knox referred claimant to Camp Interventional Pain \nfor a selective nerve block at L1-2 on the right. Claimant was released to work without limitations.  \n Claimant began his treatment with Dr. Nicholas Camp on October 22, 2019, who noted: “An \nMRI to the lumbar spine performed recently was revealed disc protrusions, primarily at the right L1-\n2 level.” Also, Dr. Camp recorded:  \n“I opened the patient’s MRI today during our visit and discussed in detail this \npatient's  underlying  pathology  and/or  treatment  approaches  available  to \naddress this pain... Will schedule a right L1-2 selective nerve root block with \nfluoroscopy.” \n \n Claimant  had  the  nerve  block  and  returned  to  see  Dr.  Knox  on December  9,  2019,  who \nrecorded in the plan that claimant was to be referred for a neurosurgical consultation of the extreme \nlateral disc herniation at L1-2 on the right. On December 10, 2019, claimant returned to Dr. Camp to \n\nAusten-H203473 \n7 \n \n \ncontinue pain management while he was waiting for approval for surgery. \nOn December 18, 2019, claimant saw Dr. Brandon Evans at NWA Neuroscience Institute, \nthe aforementioned referral by Dr. Knox. Dr. Evans recommended that claimant continue with non-\nsurgical treatments due to the improvement he had shown at that point. \n On January 14, 2020, claimant returned to Dr. Camp for epidural injections at the L4-L5 and \nL5-S1. In the next six months, claimant continued treatment with Dr. Camp or Dr. Nicholas Boris, a \nchiropractor associated with Dr. Camp. On June 2, 2020, claimant underwent another MRI; there was \ndiffuse disc bulging from L1 down to S1 and the impression was “Degenerative disc and joint disease \nwith varying degrees of neuroforaminal stenosis as described above. Disc bulge at L5-S1 minimally \nimpinges on the bilateral S1 nerve root.” (R.X.177) \n Claimant  continued  with  Dr.  Camp  and  Dr.  Boris  the  next  year  and  another  MRI  was \nperformed  on  June  14,  2021.  There  was  no  essential  canal  or  neuroforaminal  narrowing  from  T12 \nthrough L4. The impression of that MRI was: \n 1.Mild degenerative changes of the lumbar spine, worse in the lower lumbar \nspine.  At  L5-S1  there  is  a  minimal  diffused  disc  bulge  and  mild facet \nhypertrophy resulting in mild effacement of the anterior thecal sac, moderate \nright neuroforaminal narrowing and mild left neuroforaminal narrowing.  \n2.  Mild  degenerative  disc  signal  involving  all  five  intervertebral  discs  of  the \nlumbar spine. \n \n On July 26, 2021, claimant saw Dr. Charles Jones. The reason for the visit was:  \n“This is a workmen’s compensation related incident. He has been through \nchiropractic adjustments which helped some. Has not had any lumbar surgery \nbefore. He has had previous epidurals from Dr. Camp, these used to help but \nnot so much anymore. I thought about surgery, but he wanted to keep pressing \non  with  non-operative  treatments  which  is  fine.  He  tells  me  that workers’ \ncompensation  is  pushing for  him  to  get  a  second opinion  from  someone  in \nSpringdale that does lumbar disc replacements.” \n \n After reviewing the recent MRI, Dr. Jones was of the impression that an L4-S1 double TLIF \nwould be an option for his condition. Dr. Jones was very candid and advised claimant that he should \n\nAusten-H203473 \n8 \n \n \ntalk with the other surgeons to see what could be offered other than the double TLIF. \n Claimant had his first of three visits with Dr. Kenneth Tonymon on July 27, 2021. The plan \nfollowing that visit was for claimant to return to Dr. Camp for a right L5-S1 transforaminal ESI, after \nwhich a discectomy at that level would be considered. Following the ESI, claimant returned to see Dr. \nTonymon on September 21, 2021, and reported that he received a great deal of relief from the pain \nthat he had at the L5-S1 level. Claimant reported that he was no longer able to see the chiropractor \nand that his different job required that he sit for longer periods of time, which was painful. It appears \nthat  claimant  returned  to  Dr.  Camp  for  one  additional  epidural  injection  on  April  6,  2022, before \nexercising his right to change physicians.  \n A  little  over  three  years  from  the  date  of  his  injury,  claimant had his fourth  MRI.   The \nimpression of the one performed at Imaging Associates of Northwest Arkansas on August 15, 2022, \nwas “Mild  multilevel  spondylosis,  as  above.  No  high-grade  canal  stenosis  at  any  level.  Moderate \nbilateral neuroforaminal narrowing at L4-5 and L5-S1.”  \nClaimant then saw Dr. James Blankenship at the Neurosurgery Spine Center. Although Dr. \nBlankenship  did  not  believe  physical  therapy  was  going  to  offer  him  any  relief,  he  nonetheless \nprescribed  it  for  a  few  weeks; if claimant did  not  improve,  then  Dr.  Blankenship  was  going  to \nrecommend an arthrodesis at the L4-L5 and L5-S1 level. Claimant agreed with this, as he wanted to \ncontinue a conservative treatment plan.  \n When claimant returned on October 31, 2022, Dr. Blankenship recorded that the workers’ \ncompensation carrier would not approve physical therapy and as a result, claimant’s pain was getting \nsomewhat  more  intense.  Dr.  Blankenship  expressed  his  ire  at  the  denial  of  the  physical  therapy \nrecommendation and again recommended eight weeks of aggressive physical therapy. This time, the \nphysical therapy was approved, but other than relief by using traction, it did not alleviate his symptoms. \n\nAusten-H203473 \n9 \n \n \nDr. Blankenship consulted with the physical therapist and learned claimant was diligent during that \ncourse of treatment. Dr. Blankenship again discussed surgery, an anterior lumbar interbody arthrodesis \nat L4-L5 and L5-S1 with posterior decompression and extreme lateral decompressions at both L4-L5 \nand L5-S1. Claimant requested time to consider this option. Dr. Blankenship told him to let him know \nif  he  decided  to  go  through  with  the  surgery  so the precertification process with the workers’ \ncompensation carrier would begin. While there was no subsequent record from Dr. Blankenship, the \ntestimony from the claimant was clear that he wants to proceed with the surgery. \n The final record submitted was a review of the records performed by Dr. Owen Kelly, a board- \ncertified orthopedic surgeon, who prepared his report on June 28, 2023. The first four pages of the \nreport  is  a  summary  of  the  record,  after  which Dr.  Kelly  opined: “The medical documentation, \nphysical exam findings and diagnosis isolate the injury at the L1-L2 segment. The L4-S1 findings do \nnot appear to be related to the injury.” Dr. Kelly found there was a documented pathology at L4-S1 \nwhich would be related to a degenerative disc disease. He said that it would include the treatment to \nthat point as well as the arthrodesis fusion at L4-S1.     \nADJUDICATION \n  \n The parties stipulated, and I accept as fact, that claimant sustained a compensable injury on \nJuly 12, 2019. Consequently, the only issue properly before this court is the Commission's finding that \nclaimant proved  by  a  preponderance  of  the  evidence  entitlement  to  the medical  treatment \nrecommended by Dr. Blankenship for that compensable injury, Johnson Controls, Inc. v. Miller, 2023 Ark. \nApp. 235. \n While the parties were not specific as to the nature of this compensable injury, the testimony \nand  medical  records make  it  clear  that the injury was to claimant’s low back.  Dr.  Knox  had  seen \nclaimant earlier in 2019 for an injury to his back at the L1-L2 level, and in his records in September \n\nAusten-H203473 \n10 \n \n \n2019, mentioned that prior treatment. However, claimant was released in May 2019 to return to full \nduty after being treated for that non-work-related injury and was working at full duty on July 12, 2019.  \nThe MRI performed on September 30, 2019, did not show any issues at the L1-L2 level but did reveal \nsome  significant bulges at  L4-S1  levels.    For  reasons  not explained  in  the  records,  Drs. Knox  and \nCamp did not begin treatment at L4-L5 or L5-S1, but rather concentrated on L1-L2 during the first \nfew months claimant was treated by them.  In the records of his consultation examination requested \nby Dr.  Knox, Dr.  Evans  mentioned  the  L4-S1  disc  protrusion in  December  2019,  and Dr.  Camp \nadded addressing the issues at L4-S1 to claimant’s treatment plan in January 2020.   \n From the records and the testimony, I am satisfied that claimant injured his back at L4-S1 in \nJuly 2019.  It is a bit puzzling how the four MRIs claimant has undergone have shown different results \nat his L1-L2 level.  That is,  however, largely  irrelevant  to  the issue of  the  reasonableness  of  Dr. \nBlankenship’s recommendations, which is for surgery at the L4-S1 level. Claimant was understandably \nreluctant to undergo a major surgery such as has been suggested to him but has reached the point that \nit seems to be his only option.   \n In reviewing Dr. Kelly’s report, I give more  credibility  to the doctor  that  has examined a \npatient than I do to one that merely reviewed records. His statement “Although there is documented \npathology at L4-S1, the treatment would be related to degenerative disc disease” is irrelevant; “a pre-\nexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or \ncombined with the disease or infirmity to produce the disability for which compensation is sought.” \nFulton  Cty.  Hosp.  v.  Herring,  2020 Ark.  App. 221,  597  S.W.3d  162.    A  person with  degenerative  disc \ndisease without symptoms or limitations is not barred from benefits; claimant was working at his job \nwithout restrictions when he was injured.  As such, I find he has proven by a preponderance of the \nevidence that the medical treatment as recommended by Dr. Blankenship is reasonable and necessary.  \n\nAusten-H203473 \n11 \n \n \nORDER \n \n Claimant has met his burden of proving by a preponderance of the evidence that he is entitled \nto  additional  medical  treatment as  recommended  by  Dr.  Blankenship for the  injury  to his  injury. \n Respondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript. \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203473 PATRICK J. AUSTEN, Employee CLAIMANT LOWE’S HOME CENTERS LLC, Employer RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., Carrier RESPONDENT OPINION FILED AUGUST 31, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washin...","fetched_at":"2026-05-19T23:04:43.385Z","links":{"html":"/opinions/alj-H203473-2023-08-31","pdf":"https://labor.arkansas.gov/wp-content/uploads//AUSTEN_PATRICKJ_H203473_20230831.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}