{"id":"alj-H208246-2023-08-09","awcc_number":"H208246","decision_date":"2023-08-09","opinion_type":"alj","claimant_name":"Joann Bauer","employer_name":"Mhm Support Services","title":"BAUER VS. MHM SUPPORT SERVICES AWCC# H208246 AUGUST 9, 2023","outcome":"granted","outcome_keywords":["granted:8","denied:1"],"injury_keywords":["thoracic","lumbar","back","herniated","sprain","strain","knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//BAUER_JOANN_H208246_20230809.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAUER_JOANN_H208246_20230809.pdf","text_length":30146,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H208246 \n \nJOANN L. BAUER, Employee                                                                         CLAIMANT \n \nMHM SUPPORT SERVICES, Employer                                                   RESPONDENT                        \n \nMERCY HEALTH, Carrier                                                                         RESPONDENT                          \n \n \n OPINION FILED AUGUST 9, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by JARID M. KINDER, 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 12, 2023, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on May 17, 2023 and a pre-hearing \norder was filed on May 22, 2023.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #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 the \nwithin claim. \n 2.   Claimant sustained a compensable injury to her thoracic and lumbar spine on \nNovember 1, 2022. \n 3.   The claimant was earning an average weekly wage of $2,406.15 which would \nentitle her to compensation at the maximum weekly rates. \n\nBauer – H208246 \n \n2 \n \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.  Temporary total disability benefits from December 9, 2022 through January 23,  \n2023, and from February 17, 2023 through a date yet to be determined. \n2.    Claimant’s entitlement to unpaid medical as follows: \na.  Siloam Springs ER, 11/3 \nb.  Mercy ER, 11/5 \nc.   Mercy Sports Medicine – Dr. Jacobelli, M.D. for \nThoracic and lumbar spine – 1/5, 1/20, 2/17, 3/31, 5/2 \nd.  Chronic Pain Management – thoracic spine injection \n4/20 \ne.  Thoracic MRI ordered by Dr. Jacobelli \nf.   Mercy Neurosurgery – Alejandro Castellvi, M.D., 1/6 \ng.  Mercy Therapy Services – thoracic and lumbar spine – \n3/20, 3/23, 4/4, 4/27 and 5/2. \n \n3.    Claimant’s entitlement to additional medical treatment recommended by  Dr. \nJacobelli;  including,  physical  therapy,  chronic  pain  management  and  referral  to  a \nneurosurgeon. \n4.    Attorney’s fee. \n \n The claimant contends that she is entitled to payment of unpaid medical expenses \nas well as additional medical treatment recommended by Dr. Jacobelli. She also requests \npayment of temporary total disability benefits from December 9, 2022 through January \n23, 2023, and from February 17, 2023 through a date yet to be determined.  Also, see \nExhibit #1 attached to the pre-hearing order and contained as Commission Exhibit #1 to \nthe hearing transcript. \n The  respondents  contend  that  medical  treatment  was  authorized  from  Dr. \nBerestnev and Dr. Owen Kelly. Respondent has paid for this medical treatment.  All other \ntreatment  is  unauthorized  and  not  the  liability  of  respondent.    Respondent  denies  that \n\nBauer – H208246 \n \n3 \n \nclaimant is entitled to additional medical treatment recommended by Dr. Jacobelli.  Also, \nsee Exhibit #2 attached to the pre-hearing order and contained as Commission Exhibit \n#1 to the hearing transcript. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n1.  The stipulations agreed to by the parties at a pre-hearing conference conducted \non May  17,  2023  and  contained  in  a  pre-hearing  order  filed  May  22, 2023  are  hereby \naccepted as fact. \n2.      Respondent did not provide claimant a copy of  Form AR-N  as required by \n A.C.A. §11-9-514 and Delargy v. Golden Years Manor, 2014 Ark. App. 499, 442 S.W. 3d \n889; therefore, the change of physician rules are not applicable and the unpaid medical \ntreatment is not unauthorized.  \n3.    Claimant has met her burden of proving by a preponderance of the evidence \nthat  unpaid  medical  bills  are  reasonable  and  necessary  medical  treatment  for her \ncompensable injury and that respondent is liable for payment of those bills.  This includes, \nbut  is  not  limited  to,  emergency  room  treatment  on  November  3  and  November  5; \ntreatment  provided  by  Dr.  Jacobelli;  a  thoracic  MRI  scan;  a  thoracic  spine  injection; \ntreatment by Dr. Castellvi; and physical therapy. \n 4.    Claimant has met her burden of proving by a preponderance of the evidence \n\nBauer – H208246 \n \n4 \n \nthat she is entitled to additional medical treatment recommended by Dr. Jacobelli.  This \nincludes, but is not limited to, pain management and referral to a neurosurgeon. \n 5.    Claimant has met her burden of proving by a preponderance of the evidence \nthat she is entitled to temporary total disability benefits from December 9, 2022 through \nJanuary 23, 2023, and from February 17, 2023 through July 2, 2023. \n 6.    Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n  \n FACTUAL BACKGROUND \n Claimant  is  a  49-year-old  APRN  who  is  employed  by  respondent  at  Mercy-\nGoHealth  in  Rogers.   She  is  a  certified family  nurse  practitioner  and  is  responsible  for \ntreating  urgent  care  patients.    Diagnosis  and  treatment  may  include  broken  bones,  \nlacerations, IV therapy, CPR, et cetera.  Her supervising physician and direct supervisor \nis Dr. Gomez.   \n On  November  1,  2022,  claimant  was  in  an  exam  room  talking  to  a  male  patient \nthat had tested positive for Covid at home.  During that examination she turned and saw \nthat he was starting to fall off of the exam table.  She grabbed him and put him back on \nthe  table  and  as  she  did  so,  felt  immediate  pain  in  her  thoracic  and  lumbar  spine.  \nClaimant  asked  an  assistant  to  get  Dr.  Gomez  and  call  an  ambulance  for  the  patient.  \nClaimant informed Dr. Gomez of the incident and he completed a form on November 15, \n2022, indicating that he was informed of the injury on November 1, 2022.   \n Claimant was not scheduled to work on November 2, 2022.  She testified that she \nhad back pain and could not get out of bed that day.  She texted Dr. Gomez and he called \n\nBauer – H208246 \n \n5 \n \nin a prescription of Flexeril for her.  Claimant was also not scheduled to work on November \n3, 2022.  She testified that she had severe back pain and could not walk or urinate.  She \nwas taken to the emergency room in Siloam Springs by her son where she was given a \ncatheter and prescribed medications for pain.   \n On November 5, 2022, claimant was again unable to force herself to urinate and \nagain could not walk.  She was taken by ambulance to Mercy emergency room in Rogers \nwhere  an  MRI  scan  revealed  a  disc  herniation  at  L5-S1.    Claimant  was  given  a \nprescription for pain medication and muscle relaxers.  She was also instructed to follow \nup with her primary care physician or with a neurosurgeon if the symptoms persisted. \n On November 7, 2022, claimant met with Jennifer Williams, respondent’s workers’ \ncompensation  coordinator  for  Northwest  Arkansas,  and  completed  paperwork.    This \npaperwork included Form AR-N.  On November 9, 2022, claimant was evaluated by Dr. \nAlejandro Castellvi, neurosurgeon, for complaints of right lower extremity pain and right-\nsided low back pain.  He noted that the MRI scan revealed a small disc herniation at L5-\nS1; prescribed home exercises and Valium; and also indicated that claimant could return \nto work on Monday (November 14). \n According to the testimony of Williams, respondent decided to accept this claim as \ncompensable  on  November  15,  and  an  appointment  was  made  for  claimant  to  be \nevaluated by Dr. Berestnev on November 16, 2022.  Dr. Berestnev noted the herniated \ndisc  at  L5-S1 and diagnosed claimant’s condition as a sprain of the ligaments  of  the \nlumbar spine.  He prescribed physical therapy and placed a work restriction of lifting no \nmore than 20 pounds on the claimant. \n Claimant  returned  to  Dr.  Berestnev  on  November  22,  2022  and  he  noted  that \n\nBauer – H208246 \n \n6 \n \nclaimant’s pain was worsening.  He prescribed an injection, medication, and referred \nclaimant for a nerve conduction study.  He also lowered the claimant’s lifting restriction to \n10 pounds.  Following this visit the claimant began undergoing physical therapy. \n Claimant  was  again  evaluated  by  Dr.  Berestnev  on  December  6,  2022,  and  he \nnoted that her NCV was normal.  He referred her for a CT scan of the right lower quadrant \nfor pain/swelling and urinary retention symptoms.  He also continued her lifting restriction \nat 10 pounds. \n On December 9, 2022, claimant was evaluated by her primary care provider, Tu \nPhan, APRN.  Phan noted that claimant was taking Valium but could not take it at work \nbecause it was against respondent’s policy.  Phan indicated that claimant should be off \nwork until she was no longer taking sedating medications. \n Claimant  returned  to  Dr.  Berestnev  on  December  20,  2022,  and  he noted  that \nclaimant’s primary care physician had taken her off work.  He also indicated that claimant \nshould  be  seen  by  a  specialist  and  referred  claimant  to  Dr.  Miedema  at Ozark \nOrthopedics.  According to a note from Dr. Berestnev’s office, this referral was denied by \nrespondent. \n On December 23, 2022, claimant was again seen by Phan who noted that claimant \nwas  still  taking  Valium.    She  referred  claimant  to  Dr.  Jacobelli  at  Mercy  Clinic  Sports \nMedicine  and  claimant  was  seen  by  Dr.  Jacobelli  on  January  5,  2023.    He  diagnosed \nclaimant’s condition as a strain of the abdominal muscle; low back pain radiating to the \nright  leg;  and  acute  right-sided  thoracic  back  pain.    He  ordered  a  thoracic  MRI  and a \ncompounding  topical  cream  to  apply  to  the  abdomen.    He  did  not  specifically  address \nclaimant’s ability to return to work, but in a report dated January 6, 2023, Phan indicated \n\nBauer – H208246 \n \n7 \n \nthat  claimant  was  unable  to  work  due  to  her  injury  and  should  remain  off  work  until \nreleased by an orthopedist. \n On  January  20,  2023,  claimant  again  returned  to  Dr.  Berestnev  who  noted  that \nclaimant wanted a thoracic MRI scan due to the right upper abdominal symptoms.  Dr. \nBerestnev apparently agreed with that request and he ordered an MRI scan of the thoracic \nspine as well as continued physical therapy.  On that same day, claimant was also seen \nby Dr. Jacobelli who noted that the thoracic MRI scan had not been approved.  He also \nrecommended  that  claimant  continue  physical  therapy  and  the  use  of  compounding \ncream.  Finally, he indicated that claimant could return to work on Monday with limitations \non lifting; that she take frequent breaks; and “take her time”.  Claimant did return to work \nfor respondent on January 24, 2023. \n Respondent  did  not  accept  liability  for  the  thoracic  MRI  scan  even  though  Dr. \nBerestnev also recommended the test.  In fact, Williams contacted Dr. Berestnev’s office \non January 24, 2023, and indicated that respondent would not authorize any additional \nmedical treatment.  [I note that Williams did not make this decision, but merely notified \nDr. Berestnev of the decision.]    \n Since January 24, 2023, claimant has continued to receive medical treatment from \nDr. Jacobelli.  This treatment has included additional physical therapy; an MRI scan of \nthe thoracic spine showing disc herniations at T8-9 and T9-10; thoracic epidural steroid \ninjections; trigger point injections; and medications.   He has also referred claimant for a \nneurosurgical evaluation by Dr. Castellvi.  Dr. Castellvi in a report dated June 19, 2023 \nrecommended a T11-12 transforaminal injection.   \n As  previously  noted,  respondent  denied  payment  for  any  additional  medical \n\nBauer – H208246 \n \n8 \n \ntreatment  subsequent  to  January  24,  2023.    Claimant  has  filed  this  claim  requesting \npayment for various medical treatment provided both before and after this date as well as \nadditional medical treatment recommended by Dr. Jacobelli.  She also requests payment \nof temporary total disability benefits from December 9, 2022 through January 23, 2023, \nand from February 17, 2023 through a date yet to be determined as well as an attorney \nfee. \nADJUDICATION \n \n The initial issue for consideration involves payment for various medical treatments \nclaimant received.  This includes emergency room treatment on November 3, 2022 and \nNovember 5, 2022; treatment from Drs. Jacobelli and Castellvi; injections; a thoracic MRI; \nand physical therapy treatment from Mercy Therapy Services. \n Pursuant to A.C.A. §11-9-514(a)(3)(A)(i) the employer has the right to select the \ninitial  treating  physician.    However,  an  employee  may  request  a  one-time  change  of \nphysician.  A.C.A. §11-9-514(a)(2)(A).  When claimant seeks a change of physician, she \nmust  petition  the  Commission for  approval.   Stephenson  v.  Tyson Foods,  Inc.,  70  Ark. \nApp.  265,  19  S.W.  3d  36  (2000).    Treatment  or  services  furnished  or  prescribed  by  a \nphysician other than the one selected according to the change of physician rules, except \nemergency  treatment,  shall  be  at  the  claimant’s  expense.    A.C.A.  §11-9-514(b).  \nFurthermore, A.C.A. §11-9-514 provides: \n      (c)(1)  After being notified of an injury, the employer or \n  insurance carrier shall deliver to the employee, in person \n  or by certified mail, return receipt requested, a copy of a \n  notice, approved or prescribed by the commission, which \n  explains the employee’s right and responsibilities concern- \n  ing change of physician. \n      (2)  If, after notice of injury, the employee is not furnished \n\nBauer – H208246 \n \n9 \n \n  a copy of the notice, the change of physician rules do not \n  apply. \n       (3)  Any unauthorized medical expense incurred after \n  the employee has received a copy of the notice shall not \n  be the responsibility of the employer. \n \n \n The documentary evidence contains Form AR-N signed by claimant on November \n7, 2022.    On  cross  examination,  claimant acknowledged  her  signature  and signing  the \nform.  However, pursuant to the decision in Delargy v. Golden Years Manor, 2014 Ark. \nApp. 499, 442 S.W. 3d 889, there must also be proof that the claimant actually received \na copy of the Form AR-N.  Simply signing Form AR-N is not sufficient.  In Delargy, the \nCourt first noted that a signed Form AR-N was not in the abstract or the record.  Even \nthough  a  signed  copy  of  Form  AR-N  was  not  in  the  record,  the  claimant  in Delargy \nadmitted  that  she  read  and  signed  Form  AR-N.    However,  the  Court  in  reviewing  the \nstatute  focused  on  the  fact  that  claimant  must  also  be  furnished  a  copy  of  the  notice.  \nSpecifically, the Court stated: \n  We are obliged to strictly construe and apply the workers’ \n  compensation act.  Ark. Code Ann. §11-9-704(c)(3)(Repl. \n  2002).  Furthermore, there must be substantial evidence \n  that the employer complied with the statutory mandate, \n  but here, there is  no evidence to support the Commission’s \n  finding that Delargy received a copy of the notice of the \n  procedure involved in changing physicians. \n \n  Arkansas Code Ann. §11-9-514(a)(2)(A) allows a one-time- \n  only change of physician.  Subsection (c)(1) mandates that \n  the employer, after being notified of an injury, deliver a copy \n  of a notice to the employee, in person or by certified or \n  registered mail, return receipt requested, explaining the \n  employee’s rights and responsibilities concerning change \n  of physician.  If the employee is not furnished a copy of the \n  notice, the change of physician rules will not apply.  Ark. \n  Code Ann. §11-9-514(c)(2). \n \n\nBauer – H208246 \n \n10 \n \n \n Here, as in Delargy, claimant acknowledged signing Form AR-N and that form is \ncontained in the documentary evidence.  However, there is no proof that claimant was \nprovided a copy of that form as required by the decision in Delargy.  In cases decided \nsince Delargy,  this  proof  has  been  provided  by  other  means  such  as  testimony from \nwitnesses that in addition to signing Form AR-N, a claimant was also provided a copy of \nForm  AR-N.    See, Fuller  v.  Pope  County  Judge,  2018  Ark.  App.  1,  538  S.W.  2d  851.  \nClaimant did not testify that she received a copy of Form AR-N and Williams did not testify \nthat  she  provided  a  copy  of  Form  AR-N  to  claimant.    Accordingly,  I  find  that  the \nrequirements  of  providing  a  copy  of  Form  AR-N  as  required  by  the  statute and  the \ndecision in Delargy were not met in this case.  Therefore, the change of physician rules \nset forth in A.C.A. §11-9-514 are not applicable. \n Since  the  change  of  physician  rules  of  A.C.A.  §11-9-514  are  not  applicable, \nrespondent  is  liable  for  all  reasonable  and  necessary  medical  treatment  provided  to \nclaimant  for  her  compensable  thoracic  and  lumbar  spine  injuries.    With  respect  to  this \nissue, I note that there was testimony provided at the hearing regarding back complaints \nwhich claimant was experiencing prior to the incident on November 1, 2022.  The medical \nrecords  indicate  that  when  claimant  sought  treatment  from  the  emergency  room  on \nNovember  3, 2022,  she  gave  a history  of her  back  pain  beginning after working  in  the \nyard the weekend before.  However, the history also indicates that the incident of catching \na patient occurred on November 1, 2022, and that ever “since then I have had horrible \npain on my right lower back going down my right knee.”  Claimant  acknowledged  this \nhistory during her testimony.  I also note that Dr. Gomez, claimant’s supervisor, completed \n\nBauer – H208246 \n \n11 \n \na Supervisor Incident Evaluation Form on November 15, 2022, indicating that although \nclaimant had reported to work with back pain on November 1, the “Pain was exacerbated \nafter she helped a patient that was about to fall from exam room table.”   Dr. Berestnev \nalso indicated that the treatment he provided was related to claimant’s work activities.  Dr. \nCastellvi also indicated in his report of June 19, 2023:  “At this point I do not feel that her \nsymptoms were related to running.  I felt that her symptoms were related more towards \nat the time when she moved the patient.” \n I  also  note  that  respondent  requested  that  claimant  undergo  an  independent \nmedical evaluation by Dr. Owen Kelly.  In his report of March 29, 2023, Dr. Kelly indicated \nthat claimant’s work injury contributed to her symptoms:  “Her pain localizes around the \nT8-10 dermatomal area.  This seems consistent and is the likely source of her pain.  This \ncould be related to a rotation type stress at work coupled with the history of pain from the \nyard work noted in her history.”   \nIn addition, Dr. Kelly addressed causation of her complaints in a follow-up report \ndated April 14, 2023.  In his report of that date he noted: \n There is noted to be some “gray area” in the history. \n There was documentation of pain relating to irritating \n her back when she was doing yard work.  Although \n this could be a cause of her pain or part of it, the \n rotation injury contributed.  (Emphasis added.) \n \n \nFinally, and most importantly, respondent has  stipulated that claimant suffered a \ncompensable injury to her thoracic and lumbar spine on November 1, 2022. \n I find based on my review of the medical records submitted in this claim that the \nunpaid medical treatment provided at the emergency rooms; treatment from Drs. Jacobelli \n\nBauer – H208246 \n \n12 \n \nand  Castellvi;  injections;  thoracic  MRI;  and  physical  therapy  was  reasonable  and \nnecessary medical treatment for claimant’s admittedly compensable thoracic and lumbar \nspine  injuries.    Therefore,  respondent  is  liable  for  payment  of  this  unpaid medical \ntreatment. \n Even if the change of physician rules of A.C.A. §11-9-514 were applicable, I would \nhave found that most of the medical treatment was the liability of respondent.  First, A.C.A. \n§11-9-514(b) states: \n  Treatment or services furnished or prescribed by any \n  physician other than the ones selected to the foregoing, \n  except emergency treatment, shall be at the claimant’s \n  expense.  (Emphasis added.) \n \n \n I find that the medical treatment provided at the emergency rooms on November \n3, 2022 and November 5, 2022 constituted emergency treatment.  Claimant testified that \nshe sought medical treatment from the emergency room because she could not walk and \ncould  not  urinate.    Thus,  I  find  that  this  treatment  was  emergency  treatment  and \nrespondent is liable for payment.   \n Furthermore, as previously noted, respondent denied payment for any additional \nmedical treatment subsequent to January 24, 2023.  Williams testified as follows: \n  Q Will you agree with me that as of January 24\nth\n of \n  2023, you had informed Ms. Bauer’s treating physician \n  that you would not authorize any further treatment? \n \n  A Correct. \n \n  Q And would you agree with me that of as January \n  24\nth\n of 2023, Mercy has not provided any other benefits \n  to the claimant? \n \n  A Correct.  But these are not decisions that I am \n\nBauer – H208246 \n \n13 \n \n  making if that is what you are alluding to. \n \n \n Respondent  chose  to  deny  medical  treatment  even  though  it  had  accepted \ncompensable injuries to the thoracic and lumbar spines and even though its own chosen \ntreating physician, Dr. Berestnev, had recommended additional medical treatment.  Even \nDr.  Kelly  indicated  that  claimant  needed  additional  medical  treatment  for  her  thoracic \nspine,  but  this  was  likewise  denied  by  respondent.    Apparently,  respondent  took this \nposition  because  claimant  sought  medical  treatment  on  her  own.    Williams  testified  as \nfollows: \n  Q Do you know why Ms. Bauer has not been sent \n  back to Mercy at this point? \n \n  A So to the best of my knowledge, in the work comp \n  paperwork it states that you will not seek treatment \n  outside of work comp and she chose to do so, so we \n  chose to end treatment. \n \n \n If a claimant seeks medical treatment (non-emergency) on their own, a respondent \nmay not be liable for payment of that medical treatment.  However, that does not excuse \nrespondent  from  providing  authorized  medical  treatment.    By  denying  any  medical \ntreatment  subsequent  to  January  24,  2023,  respondent  permitted  claimant  to  seek \nmedical treatment from the providers of her own choosing as long as the treatment was \nreasonable  and  necessary  and  related  to  the  compensable  injuries.    Thus,  all medical \ntreatment  provided  to  claimant  subsequent  to  January  24,  2023  would  have been  the \nliability of respondent even if the change of physician rules had been applicable.   \n I also find that claimant has met her burden of proving by a preponderance of the \nevidence that she is entitled to additional medical treatment for her compensable injuries \n\nBauer – H208246 \n \n14 \n \nas recommended by Dr. Jacobelli.  This includes continued treatment from his referral to \nDr. Castellvi; chronic pain management; and physical therapy. \n The final issue for consideration is claimant’s request for temporary total disability \nbenefits.  Claimant’s injuries to her thoracic and lumbar spines are unscheduled injuries.  \nA  claimant  who  suffers  an  unscheduled  injury  is  entitled  to  temporary  total  disability \nbenefits  during  their  healing  period  when  they  suffer  a  total  incapacity  to earn  wages.  \nArkansas State Highway & Transportation Department v. Breshears, 272 Ark. 244, 613 \nS.W. 2d 392 (1981).   \n After  reviewing  the  evidence,  I  find  that  claimant  has  remained  in  her  healing \nperiod since the time of her injury.  As previously noted, claimant’s treating physicians \nhave  recommended  additional  medical  treatment  in  the  form  of  medications,  physical \ntherapy,  and  injections.    Dr.  Castellvi  has  even  mentioned  the  possibility  of  a  thoracic \ndiscectomy.    Even  Dr.  Berestnev  and  Dr.  Kelly,  respondent’s  chosen  physicians, \nrecommended additional medical treatment for claimant’s injury.  Accordingly, I find that \nclaimant remains within her healing period. \n I also find that claimant suffered a total incapacity to earn wages from December \n9,  2022  through  January  23,  2023,  and  again  from  February  17,  2023  through  July  2, \n2023.  Dr. Berestnev did not take claimant off work, but instead indicated that claimant \ncould  return  to  work  with  lifting  restrictions.    However,  on  December  9,  2022,  claimant \nwas  examined  by  APRN  Phan  who  noted  that  claimant  was  taking  Valium  for  her \ncompensable injuries and that employees of respondent were prohibited from taking that \nmedication while working.  I also note that claimant testified that she would be unable to \nperform her job duties with her restrictions.  Claimant testified that she could not suture a \n\nBauer – H208246 \n \n15 \n \npatient, perform CPR, or catch a patient that was falling.  Claimant testified that they have \nhad patients suffer heart attacks or pass out while in the waiting room.  It is reasonable \nthat claimant would not be capable of performing job duties of a medical provider while \ntaking  Valium  and  having  a  10  or  20-pound  lifting  restriction.    Accordingly, I  find  that \nclaimant  suffered  a  total  incapacity  to  earn  wages  from  December  9,  2022  through \nJanuary 23, 2023.   \n Claimant’s incapacity to earn wages continued until January 23, 2023, when she \nreturned  to  work  after seeing  Dr.  Jacobelli  on  January  20, 2023, and  he  indicated  that \nclaimant could return to work with frequent breaks.  On January 23, 2023, Dr. Gomez, as \nclaimant’s leader, indicated that claimant  could  perform  job  duties  of  providing  clinical \nservices – including evaluation, diagnosis, and treatment of urgent care conditions.  He \nalso  indicated  that  she  could  interpret  diagnostic  tests  and  keep  timely  and  accurate \nencounter note documentation.  Claimant returned to work for respondent on January 23 \nand continued to work until February 16, 2023.   \n On February 17, 2023, Dr. Jacobelli indicated that claimant could continue working \nas tolerated.  However, he subsequently completed a Medical  Leave Certification form \nfor claimant indicating that claimant had been incapacitated due to her medical condition \nsince February 17, 2023, and that this would continue through July 2, 2023.  I find that \nDr. Jacobelli’s opinion is credible and entitled to great weight.  The documentary evidence \ndoes not contain any opinion from claimant’s treating physicians stating that her total \nincapacity has been extended beyond July 2, 2023.  Accordingly, I find that claimant was \nin  her  healing  period  and  suffered  a  total  incapacity  to  earn  wages  from  February  17, \n2023 through July 2, 2023. \n\nBauer – H208246 \n \n16 \n \n In summary, I find that claimant is entitled to temporary total disability benefits from \nDecember 9, 2022 through January 23, 2023, and again from February 17, 2023 through \nJuly 2, 2023.   \n Finally,  I  note  that  claimant  testified  that  she  is  currently  drawing  long  term \ndisability benefits and received a check backdating those benefits to November 4, 2022.  \nPursuant  to  A.C.A.  §11-9-411,  respondent  is  entitled  to  a  credit  for  those  disability \nbenefits.  However, respondent is not entitled to a credit if claimant paid for her long term \ndisability  policy.  A.C.A.  §11-9-411(a)(2).    Although  claimant  testified  that  she  was \nreceiving  long  term  disability  benefits,  there  was  no  testimony  or  evidence  offered \nregarding whether claimant or respondent paid for the disability policy. \n \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \nrespondent  is  liable  for  payment  of  various  unpaid  medical  bills  provided  for  treatment \nrelating to her compensable thoracic and lumbar spine injuries.  Claimant has also proven \nby a preponderance of the evidence that she is entitled to additional medical treatment \nrecommended  by  Dr.  Jacobelli.    Finally,  claimant  has  met  her  burden  of  proving  by  a \npreponderance of the evidence that she is entitled to temporary total disability benefits \nfrom  December  9,  2022  through  January  23,  2023,  and again  from  February  17,  2023 \nthrough July 2, 2023.  Respondent has controverted claimant’s entitlement to all unpaid \nindemnity benefits. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \n\nBauer – H208246 \n \n17 \n \nclaimant.   Thus, claimant’s attorney  is  entitled  to  a  25%  attorney  fee  based  upon  the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \nRespondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $1,327.95. \nAll sums herein accrued are payable in a lump sum and without discount. \nIT IS SO ORDERED. \n \n                                                                                  \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208246 JOANN L. BAUER, Employee CLAIMANT MHM SUPPORT SERVICES, Employer RESPONDENT MERCY HEALTH, Carrier RESPONDENT OPINION FILED AUGUST 9, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas. Claimant...","fetched_at":"2026-05-19T23:03:44.481Z","links":{"html":"/opinions/alj-H208246-2023-08-09","pdf":"https://labor.arkansas.gov/wp-content/uploads//BAUER_JOANN_H208246_20230809.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}