{"id":"alj-H204215-2023-09-28","awcc_number":"H204215","decision_date":"2023-09-28","opinion_type":"alj","claimant_name":"Richard Oliver","employer_name":"Ark. Dept. Of Envir. Quality","title":"OLIVER VS. ARK. DEPT. OF ENVIR. QUALITY AWCC# H204215 SEPTEMBER 28, 2023","outcome":"unknown","outcome_keywords":[],"injury_keywords":["back","lumbar","fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Oliver_Richard_H204215_20230928.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Oliver_Richard_H204215_20230928.pdf","text_length":20416,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H204215 \n \n \nRICHARD G. OLIVER, EMPLOYEE CLAIMANT \n \nARK. DEPT. OF ENVIR. QUALITY, \n EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIV., \n CARRIER/THIRD-PARTY ADMIN. RESPONDENT \n \n \nOPINION FILED SEPTEMBER 28, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on August 24, 2023, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant   represented   by   Mr.   Mark   Alan   Peoples,   Attorney   at   Law,   Little   Rock, \nArkansas. \n \nRespondents  represented  by  Mr.  Charles  H.  McLemore,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On  August  24,  2023,  the  above-captioned  claim  was  heard  in  Little  Rock, \nArkansas.  A prehearing conference took place on July 31, 2023  .  The Prehearing Order \nentered  on  that  date  pursuant  to  the  conference  was  admitted  without  objection  as \nCommission Exhibit 1.  At the hearing, the parties confirmed that the stipulations, issue, \nand respective contentions, as amended, were properly set forth in the order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  With two additional ones reached at the hearing, they are the following, which \nI accept: \n\nOLIVER – H204215 \n \n2 \n \n1. The  Arkansas  Workers’  Compensation  Commission  (the “Commission”) \nhas jurisdiction over this claim. \n2. The  employee/employer/carrier/third-party  administrator  relationship  was \nin place on May 31, 2022, when Claimant sustained a compensable injury \nto his back. \n3. Respondents  accepted  this  claim  as  compensable  and  paid  medical  and \nindemnity benefits pursuant thereto. \n4. Claimant’s  average  weekly  wage  entitles  him  to  compensation  rates  of \n$408.00/$306.00. \n5. The change-of-physician rules apply in this matter. \nIssue \n At the hearing, the parties discussed the issue set forth in Commission Exhibit 1.  \nThe following was litigated: \n1. Whether  Claimant  is  entitled  to  additional  treatment  of  his  stipulated \ncompensable   back   injury   in   the   form   of   a   referral   to   Dr.   Kenneth \nRosenzweig for the purpose of assignment of an impairment rating. \n All other issues have been reserved. \nContentions \n The  respective  contentions  of  the  parties,  following  amendment  at  the  hearing, \nread as follows: \n\nOLIVER – H204215 \n \n3 \n \n Claimant: \n 1. Claimant  contends  that  he  is  entitled  to  medical  treatment  relative  to  his \nwork injuries.  This is in the form of a referral to Dr. Kenneth Rosenzweig \nfor the purpose of assigning an impairment rating.  Claimant’s authorized \ntreating physician, Dr. Ali Raja, was the one who made this referral. \n Respondents: \n1. Respondents  contend  that  Claimant  reported  having  an  injury  to  his  low \nback   occurring   on  May   31,   2022,   which   Respondents   accepted  as \ncompensable  and  provided  medical  treatment  that  was  reasonable  and \nnecessary for that injury. \n2. Claimant    was    provided    treatment    with    Dr.    Michael    Cassat    by \nRespondents.  This treatment was conservative in nature and included an \nMRI and physical therapy, which Claimant denied gave him relief.  He had \na stroke prior to the date of injury, and was thus unable to undergo medial \nbranch block injections and a rhizotomy because he was unable to come \noff  of  this  anti-coagulation  medication  prescribed  for  his  atrial  fibrillation \nand  cerebral  vascular  accident.    Claimant  was  released  at  maximum \nmedical  improvement  on  September  27,  2022,  by  Cassat  with  zero \npercent (0%) impairment and no work restrictions. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \n\nOLIVER – H204215 \n \n4 \n \nthe  testimony  of  Claimant  and  to  observe  his  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled to additional treatment of his compensable back injury in the form \nof a  referral  to  Dr.  Kenneth  Rosenzweig  for  the  purpose  of  determining \nwhether he should be assigned a permanent impairment rating. \nADJUDICATION \nSummary of Evidence \n Claimant was the sole hearing witness. \n In  addition  to  the  Prehearing  Order  discussed  above,  the  exhibits  admitted  into \nevidence  in this  case  were  Claimant’s  Exhibit  1,  a  compilation  of  his  medical  records, \nconsisting  of one  (1)  index  page  and  twenty-three  (23)  numbered  pages  thereafter; \nRespondents’ Exhibit  1,  another  compilation of  Claimant’s  medical  records, likewise \nconsisting of one (1) index page and twenty-three (23) numbered pages thereafter; and \nRespondents’ Exhibit 2, forms, correspondence, and other documentation related to this \nclaim, consisting of one (1) index page and nineteen (19) numbered pages thereafter. \n\nOLIVER – H204215 \n \n5 \n \nAdjudication \n Introduction.    As  the  parties  have  stipulated—and  I  have  accepted—Claimant \nsustained a compensable injury to his back on May 31, 2022.  In this proceeding, he is \nseeking  additional  treatment.    This  would  come  in  the  form  of  an  evaluation  by  Dr. \nRosenzweig  for  the  purpose  of  determining  whether  and  to  what  extent  he  has \nsustained permanent impairment to his back.  Claimant was referred to Rosenzweig by \nDr.  Raja,  his  current  authorized  treating  physician.    He  began  treating  with  Raja  via a \none-time  change  of  physician.    Respondents  have  denied  that  Claimant is  entitled  to \nthis evaluation by Dr. Rosenzweig. \n Evidence.   In  the  following  exchange,  Claimant  related  how  his  compensable \ninjury occurred: \nQ. You were working for the Department of Environmental [Quality], is \nthat right? \n \nA. Yes, sir. \n \nQ. What was your job there? \n \nA. I was a maintenance technician. \n \nQ. Describe,  and  you  don’t  need  to  go  into  a  whole  lot  of  depth,  but \nbasically what did you do? \n \nA. Lights and plumbing, moving stuff. \n \nQ. Moving furniture and things like that? \n \nA. Yes, sir. \n \nQ. Okay.  And you were performing that job May 31 of 2002, correct? \n \nA. Yes, sir. \n\nOLIVER – H204215 \n \n6 \n \n \nQ. You got hurt.  What happened? \n \nA. We were moving an entire floor of cubicles downstairs and out the \ndoors and I hurt my back. \n \nQ. It would be because you were into the process of moving one of the \ncubicles? \n \nA. Yes, and they’re big cubicles.  There’s big filing cabinets, big pieces \nof cubicles, the big heavy things.  They countertops. \n \nQ. You hurt your low back? \n \nA. Yes, sir. \n \nQ. Okay.  And nobody tried to say you didn’t get hurt on the job? \n \nA. No, sir. \n \n Initially,  Claimant  was  sent  to  Healthcare  Express.    The  record  of  his  June  1, \n2022, visit to that clinic shows that he was lifting heavy boxes at work the previous day.  \nHe  awoke the morning  of his  visit  with  sharp,  severe  pain  in  his  lower  back.    Because \nhe   had   a   cardiac   ablation   scheduled,   he   could   not   be   given   non-steroid   anti-\ninflammatory medication.  Claimant declined to undergo x-rays or physical therapy.  On \na form supplied by Respondents to the clinic and dated June 1, 2022, treating personnel \nstated    that    spasms    of    the    paraspinal    muscles    of    the    lumbar    spine    were \nobserved/palpated. \n When  Claimant  first  went  to  Dr.  Cassat  on  June  7,  2022,  he  reported  that  the \nback pain began in the middle of the night after he had “lift[ed] multiple heavy objects.”  \nX-rays  were  negative  for  any  acute  process.    The  doctor  assessed  him  as  having \n“[c]hronic  low  back  pain  without  sciatica,”  and  gave  him  a  15-pound  lifting  restriction.  \n\nOLIVER – H204215 \n \n7 \n \nClaimant underwent a physical therapy evaluation on June 22, 2022.  He was noted to \nhave tenderness to palpation in the right paraspinals.  The physical only helped “[a] little \nbit,” per Claimant. \n On  July  28,  2022,  Claimant  underwent  a  lumbar  MRI.    The  report  reads  in \npertinent part: \nFINDINGS: \n \n. . . \n \nL3-4:  Mild diffuse disc bulge indenting the thecal sac without spinal canal \nstenosis.  There is mild left neural foraminal narrowing. \n \nL4-5:  Mild diffuse disc bulge indenting the thecal sac without spinal canal \nstenosis.    The  disc  contacts  but  does  not  displace  the  transiting  left  L5 \nnerve root in the lateral recess.  There is mild neural foraminal narrowing.  \nThere is mild facet arthrosis. \n \nL5-S1:    Mild  diffuse  disc  bulge  indenting  the  thecal  sac  without  spinal \ncanal  stenosis.    A  small  [illegible  word]  paracentral  posterior  annular \nfissure  is  noted  without  protrusion  of  disc  material.    There  is  no  neural \nforaminal narrowing.  There is mild facet arthrosis. \n \n. . . \n \nIMPRESSION: \nMild  lumbar  spondylosis  at  the  L3-4,  L4-5  and L5-S1  levels  without \nsignificant spinal canal stenosis or neural foraminal narrowing.  Disc bulge \nat  L4-5  contacts  but  does  not  displace  the  transiting  left  L5  nerve  root  in \nthe lateral recess. \n \nCassat’s report of his August 9, 2022, visit with Claimant reads: \nHe returns today to review his lumbar spine MRI which shows some small \ndisc  herniations  [and]  considerable  foraminal  stenosis.  He  has  fluid  in \nhis facets at multiple levels with some degenerative change present.  \nWe discussed that this could be indicative [of] an acute exacerbation \n[of]   some   facet   pathology.  Given   that   he   [had]   no   significant \nsymptoms  before  his  injury  this  is  greater  than  50%  likely  to  be \n\nOLIVER – H204215 \n \n8 \n \ncausative [of] his symptoms.  We discussed medial branch blocks with \nrhizotomy.  He would like to return to work without restrictions which I think \nis reasonable. \n \n(Emphasis added)  The doctor gave him a full-duty release that same day. \n Claimant admitted that he sought a release.  He testified that he only returned to \nwork  because  he  was  threatened  with  termination.    However,  he  went  on  what  he \ntermed “very  limited  duty”  when  he  went  back  to  his  job  for  the  Department  of \nEnvironmental Quality: \nQ. What kind of work were you doing? \n \nA. Sitting there.   I  didn’t  really  do  a  lot.    Just  things  that,  you  had  the \nability  you  could  go  around  they’d  make  people  report  when \nsomething needs to be maintained in the building.  I would check it \nand go do it. \n \nSince  that  time,  he  has  left  employment  with  the  State  of  Arkansas.    Claimant  sought \nemployment thereafter through a temp agency, but was unsuccessful.  He has filed for \nSocial   Security   disability   benefits,   based   upon   his   pre-existing   cerebrovascular \ncondition. \n On September 27, 2022, Dr. Cassat wrote: \nOur discussion today was that he continues to have significant axial back \npain with activity [and] has failed conservative treatment measures, cannot \ntolerate   anti-inflammatories   and   is   not   currently   able   to   go   off   of \nanticoagulation  [medication]  even  with  bridging  for  medial  branch  blocks \nor a rhizotomy.  At this point [I] have no further treatment options for him, \nhe  understands  this.    He  will  continue  to  work  on  being as  active, he  will \nfollow up with me if he would like to proceed with intervention in the future.  \nHe   states   that   he  never   will   get   off  of  anticoagulation   [medication] \nsecondary  to  stroke  risk.    He  is  at  MMI  with  0%  permanent  impairment \nrating.  He has no work restrictions.  He can follow up with me as needed. \n \n\nOLIVER – H204215 \n \n9 \n \n Claimant   obtained   from   the   Medical   Cost   Containment   Division   of   the \nCommission on December 9, 2022, an order changing his authorized treating physician \nfrom  Dr.  Cassat  to  Dr.  Raja.    After  Raja’s  examination  of  Claimant  on  December  15, \n2022, he stated in pertinent part: \nAssessments \n1. Low back pain, unspecified – M54.50 (Primary) \n2. Other intervertebral disc displacement, lumbar region – M51.26 \n3. Spondylosis  without  myelopathy  or  radiculopathy,  lumbar  region – \nM47.816 \n \nReview of Radiological Studies: \nMRI  of  the  lumbar  spine  without  contrast  done  7/28/2022  at  UAMS \nshowed  mild  lumbar  spondylosis  at  L3-L4,  L4-L5,  and  L5-S1  without \nsignificant  spinal  canal  stenosis  or  neuroforaminal  stenosis.    There  is  a \ndisc  bulge  at  L4-L5  that  contacts  but  does  not  displace  the  transiting  left \nL5 nerve root in the lateral recess. \n \n \nTreatment \n1. Low back pain, unspecified \nClinical  notes:    I  personally  reviewed  outside  records  from  the \nreferring  physician  as  well  as  the  patient’s  past  medical,  surgical, \nfamily,  family,  and  social  history  and  current  medications  in  clinic \ntoday.  I also personally reviewed the  patient's radiological images \nand  imaging  reports  in  clinic  today  and  correlated  these  with  the \npatient’s current symptoms and exam findings to formulate the plan \nof care. \n \nI had a detailed discussion with the patient regarding findings of the \nhistory  and  physical  examination  and  radiological  studies.    We \ndiscussed the need for  lifestyle modifications including the need to \nbe  careful  with  no  excessive  pushing,  pulling,  bending,  weight \nlifting,  strenuous  activities  and  not  lifting  anything  more  than  5-10 \npounds. \n \nWe   also   discussed   management   options   and   plans   including \nsurgical versus nonsurgical measures.  We discussed the finding of \nmultilevel degenerative changes without definite neural \ncompromise or  evidence  of  a  fracture  on  the  patient’s  most  recent \n\nOLIVER – H204215 \n \n10 \n \nMRI of the lumbar spine done 7/28/22 and my recommendation not \nto proceed with any neurosurgical intervention at this time. \n \n Dr. Raja on May 9, 2023, referred Claimant to Dr. Rosenzweig.  The reason that \nhe listed for the referral was “[i]mpairment rating.” \n According  to  Claimant,  his  back  condition  is  so  severe  at  present  that  he  is \nincapable of putting on his pants.  He is unable to run.  While he can walk, sometimes \nfor  distances  of  up  to two  miles,  doing  so  results  in his  experiencing a  lot  of  pain.    He \nswims  as  well.   Per  Claimant,  he  is  attempting  to  exercise  in  or  to  keep  trim.    The \nfollowing exchange occurred on cross-examination: \nQ. Well, you don’t look very fat; you look pretty thin. \n \nA. I’m gaining a lot of weight in the last year. \n \nQ. How much do you weigh? \n \nA. About 152 pounds. \n \n As alluded to  in the medical records, he takes  an anti-coagulant, Eliquis, due to \nhis  afebrile  condition.    Because  of  this,  he  is  unable  to  undergo  pain  management \nprocedures such as rhizotomies.  He fears having a stroke. \n Discussion.  Claimant’s testimony is that he wishes to see Dr. Rosenzweig—the \nphysician to whom his authorized treating physician, Dr. Raja, made a referral.  I credit \nthis.   A  claimant’s  testimony  is  never  considered  uncontroverted.   Nix  v.  Wilson  World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \n\nOLIVER – H204215 \n \n11 \n \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only those \nportions of the testimony that it deems worthy of belief.  Id. \n Arkansas  Code  Annotated  Section 11-9-508(a)  (Repl.  2012)  states  that  an \nemployer shall provide for an injured employee “such medical . . . services . . . as may \nbe reasonably necessary in connection with the injury received by the employee.”  See \nWal-Mart  Stores,  Inc.  v.  Brown,  82  Ark.  App.  600,  120  S.W.3d  153  (2003).    The \nclaimant  must  prove  by  a  preponderance  of  the  evidence  that  the  subject  medical \ntreatment  is  reasonable  and  necessary.   Id.; Geo  Specialty  Chem.  v.  Clingan,  69  Ark. \nApp.  369,  13  S.W.3d  218  (2000).   The  standard  “preponderance  of  the  evidence” \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk.  373,  326  S.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947).  What constitutes reasonable and necessary medical treatment is a \nquestion  of  fact  for  the  Commission.   White  Consolidated  Indus.  v.  Galloway,  74  Ark. \nApp.  13,  45  S.W.3d  396  (2001); Wackenhut  Corp.  v.  Jones,  73  Ark.  App.  158,  40 \nS.W.3d  333  (2001).  In  order  to  prove  his  entitlement  to  the  requested  treatment, \nClaimant must also prove that it is causally related to his  stipulated compensable back \ninjury  of  May  31,  2022.   See  Pulaski  Cty.  Spec.  Sch.  Dist.  v.  Tenner,  2013  Ark.  App. \n569, 2013 Ark. App. LEXIS 601.  Dr. Rosenzweig has not been asked to merely conduct \na  records  review;  it  has  clearly  been  evinced  that  he  will  physically  examine  Claimant, \nwith   the   results  of  said   examination   forming   at   least  part   of   the   basis   for   his \n\nOLIVER – H204215 \n \n12 \n \ndetermination  of  whether,  and  to  what  extent,  Claimant  has  sustained  permanent \nimpairment.   Such examination  is  clearly a “medical  service,”  falling  within  the purview \nof  § 11-9-508(a).  Reasonable  and  necessary  medical  treatment  includes,  inter  alia, \nservices employed to diagnose the “nature and extent” of a compensable injury.  See, \ne.g.,  Ingle  v.  Hazen  Sch.  Dist.,  2023  AR  Wrk.  Comp.  LEXIS  174,  Claim  No.  H204037 \n(Full Commission Opinion filed May 24, 2023)(emphasis added). \n The  Commission  is  authorized  to  accept  or  reject  a  medical  opinion  and  is \nauthorized  to  determine  its  medical  soundness  and  probative  value.   Poulan  Weed \nEater  v.  Marshall,  79  Ark.  App.  129,  84  S.W.3d  878  (2002); Green  Bay  Packing  v. \nBartlett,  67  Ark.  App.  332,  999  S.W.2d  692  (1999).    Dr.  Cassat  has  opined  that \nClaimant’s impairment rating concerning his stipulated compensable back injury should \nbe zero percent (0%).  But I note that while the radiologist who signed off on the lumbar \nMRI  report,  Dr.  Prashanth  Damalcheruvu,  identified  the  findings  at  L3-S1  to  be “[m]ild \ndiffuse  disc  bulge[s],”  Cassat  termed  them “small  disc  herniations  .  .  .  .”  (Emphasis \nadded)  In light of this apparent discrepancy, and in view of Dr. Cassat’s opinion—which \nI  credit—that  Claimant’s  work-related  injury  is  the  cause  of  his  spinal  symptoms,  an \nevaluation  by  Dr.  Rosenzweig  to  determine  whether  Cassat’s  rating  assessment  was \nappropriate is warranted.  I credit Claimant’s testimony as outlined above concerning his \npain  and  physical  problems  caused  by  the  back  injury.    The  preponderance  of  the \nevidence establishes that the referral of Claimant to Dr. Rosenzweig for this  purpose is \nreasonable and necessary. \n\nOLIVER – H204215 \n \n13 \n \nCONCLUSION AND AWARD \n Respondents are directed to pay/furnish benefits in accordance with the findings \nof fact and conclusions of law set forth above.  All accrued sums shall be paid in a lump \nsum  without  discount,  and  this  award  shall  earn  interest  at  the  legal  rate until  paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2002).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H204215 RICHARD G. OLIVER, EMPLOYEE CLAIMANT ARK. DEPT. OF ENVIR. QUALITY, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIV., CARRIER/THIRD-PARTY ADMIN. RESPONDENT OPINION FILED SEPTEMBER 28, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II ...","fetched_at":"2026-05-19T23:03:15.147Z","links":{"html":"/opinions/alj-H204215-2023-09-28","pdf":"https://labor.arkansas.gov/wp-content/uploads/Oliver_Richard_H204215_20230928.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}