{"id":"alj-H204710-2023-11-30","awcc_number":"H204710","decision_date":"2023-11-30","opinion_type":"alj","claimant_name":"Alice Lawrence","employer_name":"Searcy County Judge","title":"LAWRENCE VS. SEARCY COUNTY JUDGE AWCC# H204710 NOVEMBER 30, 2023","outcome":"granted","outcome_keywords":["granted:1"],"injury_keywords":["back","knee","hip","lumbar","ankle"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//LAWRENCE_ALICE_H204710_20231130.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LAWRENCE_ALICE_H204710_20231130.pdf","text_length":22311,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H204710 \n \nALICE E. LAWRENCE, Employee                                                     CLAIMANT \n \nSEARCY COUNTY JUDGE, Employer            RESPONDENT \n \nAAC RISK MANAGEMENT SERVICES, Carrier                                              RESPONDENT \n \n \n OPINION FILED NOVEMBER 30, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Harrison, Boone County, \nArkansas. \n \nClaimant represented by NEAL L. HART, Attorney, Little Rock, Arkansas. \n \nRespondents represented by JASON M. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On October 26, 2023, the above captioned claim came on for a hearing in Harrison, Arkansas.  \nA pre-hearing conference was conducted on August 3, 2023, and a pre-hearing order was filed on that \nsame date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na 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 June 16, 2022. \n            3.  The  compensation  rates  are  $413.00  for  temporary  total  disability  and  $310.00 for \npermanent partial disability.   \n Before testimony began at the hearing, the parties also announced two additional stipulations: \n 4.    An accident occurred on June 16, 2022, and respondents have accepted a left leg injury. \n\nLawrence-H204710 \n2 \n \n 5.      Temporary total disability payments were paid through March 2, 2023, and there have \nbeen no temporary total disability payments since that date.  \n            At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.  Compensability regarding claimant’s back injury. \n            2.  If compensable, whether claimant is entitled to medical treatment. \n            3.  Whether claimant is entitled to temporary total disability benefits. \n            4.  Attorney’s fees. \n The parties requested that the third issue be modified to read “whether claimant is entitled to \nadditional temporary total disability benefits for a back injury, a leg injury, or both.   \n All other issues are reserved by the parties. \n The claimant contends that “She suffered a compensable injury to her left lower extremity, \nlow back, and other body parts after she was run over by a garbage truck at work. The low back was \nand  is,  at  the  very  least,  an  aggravation  of  a  preexisting  condition, and is, therefore, respondents’ \ncontinued responsibility, for medical care purposes, payment of indemnity benefits, and for any and \nall other benefits related thereto and allowed by the Act. The workers’ compensation doctor is Justin \nCutler,  D.O.,  a  Harrison orthopedic surgeon. While respondents continue to pay for Dr. Cutler’s \nmedical care, they have denied at least two of his treatment recommendations, namely a C-brace for \nclaimant’s leg and a referral to pain management for left lower extremity pain.  This  constitutes \nreasonable,  necessary,  and  related  medical  care,  and  respondents  should  be  required  to  provide  it. \nClaimant continues to treat with Dr. Cutler at respondent’s expense; she remains in a healing period \nand in an “off work” capacity secondary to her various injuries; at least one of her injuries is scheduled; \nand she has not returned to work. She is, therefore, entitled to an award of additional temporary total \ndisability  benefits  from  the  date  last  paid  (approximately  May  10,  2023)  through a  date  to  be \n\nLawrence-H204710 \n3 \n \ndetermined. Claimant’s counsel is entitled to payment of a statutory attorney’s fee on all controverted \nindemnity benefits. Claimant respectfully reserves the right to amend and/or otherwise alter the above \ncontentions as discovery progresses. All other potential issues are expressly reserved for litigation at a \nlater date including, but not necessarily limited to, anatomical impairment, permanent total disability, \nwage-loss disability, vocational rehabilitation, Section 11-9-505(a) benefits, and any other additional \nbenefit allowed by law. This is a claim for additional compensation, and claimant renews her request \nfor  an  award  of  any  and  all  benefits to which she may be entitled, under the Arkansas Workers’ \nCompensation Act.” \n The respondents contend that “The claimant’s left lower extremity was accepted, and all \nappropriate benefits have been paid. The claimant’s back condition is preexisting and there is no \nobjective evidence to support a compensable injury to the lower back. The treatment suggested by \nDr. Cutler is for the back and symptoms related to the back. The claimant’s period of disability, if \nthere is one, is related to her back which is not compensable.” \n After the entry of the prehearing order, respondents filed a motion for an independent medical \nexamination (IME), said motion being filed on September 28, 2023.  Claimant objected on September \n29, 2023.  \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 her demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \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 \n3, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact, as are \n\nLawrence-H204710 \n4 \n \n \nthe stipulations announced at the beginning of the hearing. \n 2.  Respondents’ motion for an independent medical examination is granted. \n 3.   This matter will be held in suspense pending the completion of the independent medical \nexamination. \n FACTUAL BACKGROUND \n As set forth above, the hearing on the motion by respondents for an IME and the claimant's \ncase in chief were combined. The parties were advised that if I determined that an IME was reasonable \nand necessary, no decision would be rendered on the other issues presented. If I decided that the IME \nwas not reasonable and necessary, then a decision on those issues would be rendered.  Neither party \nobjected to this manner of handling this matter.   \nHEARING TESTIMONY \n \n Claimant was the only witness at the hearing. She gave a detailed vocational history, including \ndescribing  the  physical  requirements  of  the  jobs  that  she  had  worked  following  her  high  school \ngraduation in 1996. She also described the requirements of the job that she was doing with respondent, \nSearcy County, prior  to  her  accident  on  June  16,  2022.  On  June  16,  2022, she  was  performing her \nnormal job of picking up trash. She had gotten out of the F-350 truck to shut the back doors of the \ncage that is built onto the truck. As she was out of the vehicle, another truck pulled behind the one \nthat  she  had  exited  and  honked  its  horn.  The  driver  of  the  vehicle  in  which  she  was  riding  pulled \nforward, hitting her and knocking her in front of the back tire. The wheel of the tire went up on her \nleft foot. Claimant tried to roll away from the vehicle. Claimant testified that she screamed, causing \nthe driver of the vehicle to stop. At that time, the wheel was on her lower back and then the driver \nbacked down her leg again. Because she was afraid that the driver might roll over her again, she got \nout of way of the wheels of the truck. Claimant said she could not put weight on her leg. Because of \n\nLawrence-H204710 \n5 \n \n \nwhere the accident took place, claimant got into the truck and returned to the main road where a call \nwas made to 911 and an ambulance came to where aid was administered. Claimant was then flown to \nSpringfield, Missouri where she was treated and released to see her family doctor; there were no broken \nbones in her leg.  \n After seeing her family physician, Dr. Jose Abiseid, she was referred to Dr. Justin Cutler, an \northopedist in Harrison, Arkansas. Claimant’s main issue at that point was still with her leg, and she \nwas treated conservatively with medication and physical therapy. Because it is thirty-six miles from \nher  home  to  the  physical  therapist,  claimant  has  not  been  receiving  physical  therapy,  but  has  been \ndoing her exercises at home. Dr. Cutler administered an injection to her back which helped with the \npain. Dr. Cutler also sent claimant for an MRI on her back. Claimant testified that Dr. Cutler wanted \nher to be seen by a pain management specialist and to have a C-brace to improve her walking; these \nhave been denied by the respondent. Dr. Cutler had not released claimant to return to work as of the \ndate of the hearing.  \n Claimant saw Dr. Edward Saer after having been referred by Dr. Cutler. Dr. Saer has treated \nclaimant for her back injuries in the past. Claimant believed that he was not interested in seeing her \nfor her 2022 injury. \n When asked to describe her current symptoms, claimant said she still has swelling. She cannot \nfeel her leg from her knee down and has no control over it. She stated she has numbness up to her \nhip. She has shooting pains and muscle spasms in her back, but a large part of her leg is numb and \nwithout sensation. She uses her walker constantly. She believes her symptoms are getting worse over \ntime. Claimant said she gets relief when she lies down and doesn’t do much to aggravate her condition. \nThe problem with her leg gives her problems sleeping. Claimant admitted that she had had problems \nwith her left leg associated with her prior back problems, but the surgeries alleviated the leg problems. \n\nLawrence-H204710 \n6 \n \n \nShe said the problems with her leg are different now because of the numbness. \n On  cross-examination,  claimant  admitted  that  she  had  degenerative  conditions in her  back \nwhich were diagnosed as early as 2007. Claimant stated that she had been fused on her pelvis up to \nL1 (but later corrected herself to say L-4 was the top of the fusion). \n When asked to relate the events of the injury, claimant said that the bed of the truck struck \nher and pushed her off balance, causing her to fall on her right side. Her left leg was closer to the tire, \nbut she testified that her body was facing the front of the truck, directly in front of the tires, and then \nclarified that it was a dual tire truck. In order to get away from the tires, she tried to roll under the \ntruck but was pinned and could not get away from it. Claimant testified that she had tire tread on her \nback where the driver stopped. Claimant admitted that she had no damage to her organs, nothing was \nbroken and had no ligament tear. \n While in Springfield, claimant said the emergency room personnel did not focus on her back \nbecause  she  told  them  her  problems  were  with  her  left  leg.  She recognized the  diagram  of  her \ncomplaints and agreed that she told the trauma team “Patient reports her left leg was run over by a \ndump truck. Patient denies any other injury. Isolated left leg injury.” \n Claimant stated when she began seeing Dr. Cutler, he was treating her specifically for her left \nleg issues and believed that the problem with her left leg now is related to her back. The walker she \nwas using on the day of the hearing had been prescribed to her from her surgery in 2016 or 2017. \nWhen asked about Dr. Cutler’s narrative in which he reported that she “reports accident occurring on \nJune 16, where she ended up underneath a garbage truck. Truck ran up her left leg all the way up to \nher thigh. Backed off of it.” She said that narrative was wrong. She did not know why Dr. Cutler did \nnot note that she was using a walker on July 26, 2022, because she was. \n Claimant repeated that she did not like how Dr. Saer was acting during her visits with him but \n\nLawrence-H204710 \n7 \n \n \nknew of no reason why he would not want to help her or had any animosity toward her. She disagreed \nwith Dr. Saer’s opinion that her continued symptoms did not relate to her back injury. Because Dr. \nCutler did not agree with Dr. Saer’s opinion, a third opinion regarding claimant’s back was requested \nby Dr. Cutler. \n On redirect-examination, claimant clarified that she had a fusion from S1-L4, not L1. She was \naware  that  Dr.  Cutler  reviewed  the  MRI  of  her  spine  and  believed  there  was  a  large  lateral  disc \nherniation at L5-S1.  \nREVIEW OF THE EXHIBITS \n \n In addition to the motion for an independent medical examination and claimant’s response to \nthat motion, claimant submitted medical records of her treatment after the June 16, 2022, injury, while \nrespondent submitted records that predated that injury, except for an MRI performed on July 7, 2022, \nand the emergency room records from Cox Health dated June 16, 2022.   \n Claimant began with conservative care for her leg injury with Dr. Cutler on July 19, 2022. She \ndid mention in that initial visit that she was having numbness and tingling with some sharp shooting \npains in her left thigh and left lower extremity.  The emphasis on claimant’s treatment remained with \nher left leg until after Dr. Cutler ordered an MRI and an EMG, which were performed on September \n8, 2022.  Upon seeing the results, Dr. Cutler requested an MRI on her lumbar spine.   \n On October 3, 2022, an MRI was performed at North Arkansas Regional Medical Center.  \nThe impression was:  \n1. Indeterminate intermediate intensity signal material within the left lateral recess \nat  L5/S1  contacting  and  possibly  encasing  the  traversing  left  S1  nerve  root. \nUnable to exclude scar tissue given the prior surgery. Correlate with any left S1 \nradicular symptoms. \n2. Prior  decompression  and  interbody/posterior  fusions  at  L4/L5  and  an  L5/S1. \nMild  adjacent  segment  disease  at  L3/L4  with  grade  1  retrolisthesis  and  mild \nbulging of the disk.  No narrowing at L3/L4.  \n \n\nLawrence-H204710 \n8 \n \n \n Because she had been previously treated by Dr. Saer for back issues—including performing \ntwo spinal surgeries—Dr. Cutler referred claimant to see him again.  She was examined by Dr. Saer \non October 25, 2022, who recorded in his assessment:  \n“She does not have a definite bony injury in her lumbar spine and there is no \ndefinite  nerve  root  compression.  She  certainly  could  have  an  injury  to  the \nperoneal  nerve  or  a  neuropraxia  to  the  femoral  nerve  or  perhaps  even  the \nlumbar  plexus.    I  do  not  see  anything  in  her  spine  now  that  looks  like  she \nneeds further treatment. Continuing therapy is probably her best bet.” \n \n Claimant returned to Dr. Cutler on November 9, 2022, and expressed her dissatisfaction with \nDr. Saer, reporting that Dr. Saer asked her repeatedly about an EMG when she had already told him \nthat she had one.  Dr. Cutler still believed that the EMG and MRI of the lumbar spine are consistent \nwith  new  herniations  from  her  injury.      He  suggested  a  second  spine evaluation  and  performed  an \ninjection into claimant’s left LI joint.   \n Instead of seeing a different neurosurgeon, the next record was another EMG ordered by Dr. \nSaer, this time performed at Ortho Arkansas in Little Rock on December 15, 2022.  The impressions \nfrom this test were:  \n            1.    Abnormal electrodiagnostic study. \n2.  There is electrodiagnostic evidence suggestive of a non-localizable left peroneal \nneuropathy  with  no  focal  slowing  seen  at  the  fibular  head  and  no  active \ndenervation in any peroneal and elevated muscles tested.  In addition, there were \ninconsistencies  seen  between  functional  and  volitional  activity  throughout  the \nstudy  as  patient  seen  doing  activities  such  as  ambulating,  able  to  get  onto  exam \ntable on own accord, rotate on table, extend and flex legs, but volitional activity \nwas minimally seen.  \n3. There  is  no  electrodiagnostic  evidence  of  any  other  focal  nerve  entrapment, \ngeneralized peripheral neuropathy or left lumbar radiculopathy. \n4. Of  note,  EMG  is  not  a  completely  sensitive  study,  and  does  not  evaluate  small \nsensory  pain  fibers.  Thus,  lack  of  active  denervation  on  today's  study  does  not \nexclude  an  active  radiculopathy.  Clinical  correlation  is  needed  to  determine  the \nsignificance of today's electrodiagnostic examination findings. \n \n \n\nLawrence-H204710 \n9 \n \n \n Dr. Saer reviewed the results of the EMG on December 16, 2022 and again reassured claimant \nthat he saw nothing for which she needed surgery. \n Claimant  returned  to  Dr.  Cutler  on  February  6,  2023; his  notes from  that  date through  his \nAugust 16, 2023, office visit repeatedly included a recommendation that claimant be seen by another \nspecialist.  That final visit concluded with the following impression/plan:  \n“Patient is status post being run over by a dump truck with complete loss of \nfunction in the left lower extremity. Is being reported from workers comp that \nshe  had  a  previous  low  back  injury  with  a  nerve  root  impingement.  This  is \nnothing like that type of injury. This is a completely additional ordeal. Patient \nhas no functional use of her left lower extremity. Patient requires substantial \namount  of  assistance  and  cannot  drive  or  even  ambulate  without significant \nhelp.  Patient  would  greatly  benefit  from  a  C brace  to  help  control  her  hip, \nknee, and ankle motions. This will allow her to have more independence with \nactivities of daily living. Even where patient did have a documented previous \nback injury for many years ago, this is an injury that has more than aggravated \nthose problems. In reality, this is a completely new injury causing severe nerve \nfunction dysfunction to her entire left lower extremity.” \n  \nADJUDICATION \n \nAs  set  forth  above,  the  first  question to  be  decided is whether  an  independent  medical \nexamination is reasonable and necessary in this matter.  \nArkansas Code Annotated section 11-9-511(a) provides, in relevant part: \n \nAn injured employee claiming to be entitled to compensation shall submit to \nsuch  physical  examination  and  treatment  by  another  qualified  physician, \ndesignated  or  approved  by  the  Workers'  Compensation  Commission,  as  the \nCommission may require from time to time if reasonable and necessary. The \nthreshold  question  is  whether  the  examination  is  reasonable  and  necessary.  \n(Emphasis added.) \n \nRule 30 (1) of the Arkansas Workers' Compensation Commission provides: \n \nAn independent medical examination shall include a study of previous history and Medical \nCare information, diagnostic studies, diagnostic x-rays, and laboratory studies, \nas  well  as  an  examination  and  evaluation. This  service  may  be  necessary  in \norder  to  make  a  judgment  regarding  the  current  status  of  the  injured  or  ill \nworker, or to determine the need for further health care. (Emphasis added.) \n\nLawrence-H204710 \n10 \n \n \n \nWhen  viewing  the  medical  evidence considering the  standards  set  forth  above,  I believe \nrespondents  have  shown  that an  IME  is  reasonable and  that it  would  be  necessary  to  make  an \ninformed judgment in this case about claimant's need for further health care that is attributable to her \ncompensable injury.  \nAs  I  outlined  in the  review  of  the  medical  records,  there is  a  sharp  difference  of  opinion \nbetween Dr. Cutler and Dr. Saer about the cause of claimant’s continued left leg pain.  Claimant \nbelieved that Dr. Saer was uninterested in helping her; respondents maintain that Dr. Cutler is actively \nadvocating for claimant. I do not care to ascribe motives to either doctor that affect their opinions.  I \nrecognize  that  a conflict  in  the  opinions  of  the  doctors  is  no  reason, in  and  of  itself, to  order  a \n\"tiebreaker\" IME. The Commission has authority to accept or reject medical opinion and to determine \nits  medical  soundness  and  probative  force. Oak  Grove  Lumber  Co.  v.  Highfill,  62  Ark.  App.  42,  968 \nS.W.2d 637 (1998).   \nHowever, with all that said, I am concerned about the equivocal nature of the impressions on \nthe lumbar MRI of October 3, 2022, and the EMG test performed on December 15, 2022.  It may \nwell be that claimant could undergo another dozen such tests and no one could be any more definite \nthan were the two radiologists that recorded their impressions. Still, I believe the results of these tests \nare  at  the  root  of  the disagreement  between  Drs.  Cutler  and  Saer.    As  such,  I  find  the  request by \nrespondents for  an  IME to  be  reasonable—as  does Dr.  Cutler,  as  witnessed  by  his  repeated \nrecommendation for another evaluation—and necessary for me to make an accurate assessment as to \nclaimant’s need for additional medical care.   \nBecause I am granting the motion for an IME, this matter will be held in suspense pending \nthe receipt of the report from the physician conducting the IME.  This matter will be referred to the \nMedical Cost Containment Division of the Commission to select that physician. \n\nLawrence-H204710 \n11 \n \n \nORDER \n \n Respondents’ motion for an IME is granted.   The cost of said examination is to be borne by \nrespondents, including mileage for claimant’s travel.  Further, the parties should provide the physician \nselected  by the  Medical  Cost  Containment  Division the  medical  records,  including  any  diagnostic \ntesting  previously  performed  in  order for  that  physician  to  have  a  complete  record  of  what  has \ntranspired  to  this point. If the  physician  selected  believes  additional  diagnostic  procedures  are \nnecessary to properly evaluate the claimant, such should be promptly authorized by respondent.  \nIt is further ordered that the issues raised by claimant are held in suspense, pending receipt of \na narrative from the specialist selected.    \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204710 ALICE E. LAWRENCE, Employee CLAIMANT SEARCY COUNTY JUDGE, Employer RESPONDENT AAC RISK MANAGEMENT SERVICES, Carrier RESPONDENT OPINION FILED NOVEMBER 30, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Harrison, Boone County, Arkansas...","fetched_at":"2026-05-19T23:01:01.108Z","links":{"html":"/opinions/alj-H204710-2023-11-30","pdf":"https://labor.arkansas.gov/wp-content/uploads//LAWRENCE_ALICE_H204710_20231130.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}