{"id":"alj-H208296-2024-06-11","awcc_number":"H208296","decision_date":"2024-06-11","opinion_type":"alj","claimant_name":"Laura Treadwell","employer_name":"Pope County Judge","title":"TREADWELL VS. POPE COUNTY JUDGE AWCC# H208296 June 11, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["back","thoracic","repetitive","lumbar","strain","sprain","hip"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/TREADWELL_LAURA_H208296_20240611.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TREADWELL_LAURA_H208296_20240611.pdf","text_length":27746,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H208296 \n \nLAURA TREADWELL, Employee CLAIMANT \n \nPOPE COUNTY JUDGE, Employer RESPONDENT \n \nAAC RISK MANAGEMENT SERVICES, Carrier RESPONDENT \n \n OPINION FILED JUNE 11, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Russellville, Pope \nCounty, Arkansas. \n \nClaimant represented by DANIEL E. WREN, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by JASON M. RYBURN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On March  14,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at Russellville, \nArkansas.      A  pre-hearing  conference  was  conducted  on January  22,  2024,  and  a  Pre-hearing \nOrder  was  filed  on January  23,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 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 relationship of employee-employer-carrier existed between the parties on April 15, \n2022. \n 3. The claimant sustained a compensable injury to her back on or about April 15, 2022. \n 4. The claimant’s weekly compensation rates will be determined at a later date.  \n By agreement of the parties the issues to litigate are limited to the following: \n\nTreadwell – H208296 \n \n-2- \n 1. Whether Claimant is entitled to additional medical treatment in the form of an FCE as \nrecommended by Dr. Beavers, or whether Claimant is entitled to referral from Dr. Beavers to Dr. \nBrad Thomas or a similar neurosurgeon. \n The claimant's contentions are as follows: \n“Dr.  Beavers  has  ordered  a  functional  capacity  exam  for  the \nClaimant which the Respondents refuse to approve.” \n \n The respondents’ contentions are as follows: \n“All  appropriate  benefits  have  been  paid. The  claimant  has  been \nreleased  at  MMI  with  a  0%  impairment  rating.  An  FCE  is  not \nmedical  treatment,  nor  is  it  necessary.  The  respondents  have  paid \nfor   all   reasonable   and   necessary   medical   treatment   and   the \nrequested treatment is not reasonable or necessary.” \n \n The  claimant  in  this  matter  is  a 46-year-old  female who  worked  for  the  respondent  on \nApril  15,  2022,  when  she  sustained  a  compensable  back  injury.  At  that  time  the  claimant  was \nemployed  as  a  paramedic  for  the  respondent.  On  direct  examination  the  claimant  described  the \nApril 15, 2022, incident in which she sustained a compensable back injury as follows: \nQ All  right.  But  just  for  a  little  bit  of  background  for  the \nJudge, a two-minute summary of how you got hurt. \n \nA Me and my female partner were on a call in Hector about a \n275-pound   man   with   breathing   problems   that   needed   to   be \ntransported. When we put him on our cot, out cots are manual lift. \nThey  did  not  have  power  cots.  When  we  picked  the  cot  up,  my \npartner did not release the handle on the cot. It did not lock the legs \nin place and when the weight was put back down, the cot slammed \nto the ground and I was still holding it. I bent at the waist. \n \nQ And,  essentially,  you  were  touching  your  toes  with  your \nhands? \n \nA My head was close to my toes. \n \nQ Okay. Did you feel immediate pain? \n \n\nTreadwell – H208296 \n \n-3- \nA Yes, sir. \n \nQ All  right.  Did  you  seek  treatment,  file  a  workers’  comp \nclaim, let your supervisor know and get treatment for that claim? \n \nA Yes, sir. \n \n The  claimant  began  to  see  Dr.  Edward  Saer  at  Ortho  Arkansas  in  Little  Rock  on \nSeptember 9, 2022. Dr.  Saer provided the  claimant with conservative medical treatment for her \ncompensable back injury until November 29, 2022, when he released her at MMI and found no \npermanent  impairment  associated  with  her  compensable  injury.  Following  is  a  portion  of  Dr. \nSaer’s November 29, 2022, medical record: \nAssessment/Plan \n \nMs.  Treadwell  is  back  in  follow-up. She  is  an  EMT  and  had  a \nwork-related injury on April 15, 2022 lifting a patient on a cot. She \nhas  had  pain  in  her  lower  back  as  well  as  tightness  in  the  lower \nthoracic area since then. She continues to complain of the tightness \nin  her  back  especially  if  she  overdoes  things.  She  is  taking  a \nFlexen,  usually  in  the  afternoon,  although  not  every  day.  She  gets \nrelief  if  she  takes  the  Flexeril  and  lies  down  to  rest.  She  has \navoided doing  any heavy lifting and continues to work on a light-\nduty basis. \nShe  continues  to  take  naproxen  twice  daily.  She  is  using  OTC \nnaproxen now. She is continue with some exercising and stretching \nthat she learned in physical therapy. \nExam: \nShe  gets  up  and  down  easily  and  walks  normally.  She  has  good \nforward  pending  and  good  extension  although  extension  is  a  little \nuncomfortable.  Forward  bending is her position of comfort. There \nis no muscle spasm. She has no localized tenderness. \nHer prior imaging did not show any significant focal abnormalities \nno new x-rays were obtained today. \nAssessment: \nI had recommended an FCE but that was not approved. Therefore I \nthink she should continue with light duty level work with a lifting \nlimit  of  25  pounds,  and  no  repetitive  bending  twisting  or  lifting. \nThese restrictions should be considered permanent. \nShe is at MMI. There is no permanent impairment associated with \nthis injury. \n\nTreadwell – H208296 \n \n-4- \n \nDr. Saer also authored a letter to the respondent regarding the claimant’s medical treatment on \nNovember 29, 2022. The body of that letter follows: \nI saw Laura Treadwell in the office today. She has been treated for \nback  pain  following  an  injury  at  work.  As  far  as  I  can  determine \nshe had a lumbar strain or sprain. \n \nTreatment  was  based  on  the  recent  injury,  not  on  pre-existing \nchanges.  There  are  no  objective  findings  to  warrant  permanent \nimpairment  rating.  Work  restrictions  are  based  primarily  on  the \ninjury, not any pre-existing conditions. \n \nAs far as I can tell, this was an acute injury, although I did not see \nher until 3 months after the date of injury. \n \nI do not think any further treatment is needed at this time. \n \n After  being  released  by  Dr.  Saer,  the  claimant  admittedly  began  unauthorized  treatment \nfor  her  compensable  back  injury  with  her  PCP,  Dr.  Homer  Beavers at Millard  Henry  Clinic, \nunder her regular healthcare insurance. Dr. Beavers referred the claimant to Dr. Brad Thomas of \nLittle Rock Neurosurgery. \n On March 15, 2023, the claimant was seen by Dr. Thomas. Following is a portion of that \nvisit note: \nHPI:  This  is  a  45  year  old  female  who  is  being  seen  for  a  chief \ncomplaint  of  chronic  low  back  pain  involving  the  spine.  Context: \nan  injury  at  work  on  4/15/2022.  Details:  She  was  working  as  a \nparamedic.  She  and  her  partner  were  lifting  a  manual  cot  with  a \n275+ pound man on it. She was lifting the head. Her partner started \nto put the legs down but did not release the lock mechanism, so the \ncot  slammed  to  the  ground.  She  was  still  holding  the  cot  and \nbasically folded in half. She had an immediate pain in her low back \nand got sick on the scene. She reported it to her employer who sent \nher to urgent care where she got x-rays. They sent her home with a \nmuscle  relaxer  and  an  anti-inflammatory.  She  was  off  work  until \nshe  could  follow  up  with  occupational  medicine.  When  she  saw \nthem  they  had  her  start  PT.  About  a  week  into  PT  they  started \nadding exercises that made her pain worse and she had to stop PT. \n\nTreadwell – H208296 \n \n-5- \nEventually they ordered an MRI. She saw Dr. Saer who put her on \na  permanent  35  pound  restriction.  He  said  there  was  a  disc \nherniation  and  had  her  continue  PT.  She  felt  like  she  could  not \nhold  herself  up.  She  started  having  weakness  in  her  thighs.  Dr. \nSaer  ordered a  myelogram,  but  work  comp  refused  it.  He  tried  to \norder it again and it was refused again. The patient then found out \nthat  Dr.  Saer  was  a  deacon  and  friends  with  her  boss.  Once  she \nfound that out she felt like things changed. He ordered an FCE, but \nwork comp refused it. In the meantime she was working light duty \nin  the  courthouse.  In  December  she  got  a  letter  from  the  judge \nstating  he  was  terminating  her  position  because  she  was  on  a  35 \npound lift restriction and could no longer perform the duties of her \njob.  Then  she  got  a  letter  from  work  comp  telling  her  she  should \nget representation. She did not have any follow ups scheduled with \nDr. Saer. She got one check from worker’s comp. In January she \nbent over to look at a label on a shelf in CVS and her left leg went \nnumb. She fell into the shelf. She went home and sat down. Later \nthat night she noticed her rumba was not working properly and she \nbent over to check it out. She had the same symptoms again at that \ntime. She contacted her lawyer who told her to see her PCP, so she \nsaw Dr. Beavers and he referred her to us. A week after she started \nhaving   symptoms   in   January   she   had   an   episode   of   urinary \nincontinence.   This   has   happened   several   times,   but   is   not \nconsistent. It seems to happen on days when her back pain is at its \nworst. She has been transferred by the county and is now working \nat the Assessor’s office where she makes significantly less. She \nreports the following pertinent positives: urinary incontinence. \n \n*** \nImpression/Plan: \n1. Low back Pain (new Dx) \n \nLocated on the lumbar spine \nAssociated  diagnoses:  Intervertebral  Disc  Degeneration,  Lumbar, \nLeg Pain, and Numbness \n \nPlan: Other \nShe has been having low back pain since an injury at work in April \nof  2022.  She  started  having  symptoms  again  in  January  that  she \nbelieves  is  related  to  her  work  injury.  She  and  her  lawyer  need  to \nget the notes from Dr. Saer then contact worker’s comp and tell \nthem she wants to re-open her case and change physicians. We are \ngoing to order a new MRI and have her follow up. \n \n\nTreadwell – H208296 \n \n-6- \nThere is a worker’s comp rep present in clinic today, but since this \nis not technically a worker’s comp visit, we did not speak with the \nrep. The rep was not in the room with the patient during the visit. \n \nPlan: Order MRI – Spine \nProtocol – Lumbar – Spine – Lumbar  MRI  WC,  contrast  (CPT: \n72149) \nIndication: Low Back Pain – M54.50, M51.36, M79.605, R20.0 \n \n The claimant was again seen by Dr. Thomas on April 7, 2023. Following is a portion of \nthat visit note: \nHPI:  This  is  a  45  year  old  female  who  is  following  up  for  Low \nBack  Pain  (low  back  pain,  unspecified)  on  the  lumbar  spine.  She \nwas  seen  on  March  15,  2023,  at  which  time  MRI  Interpretation \nLumbar Spine was performed and \n \nShe has been having low back pain since an injury at work in April \nof  2022.  She  started  having  symptoms  again  in  January  that  she \nbelieves  is  related  to  her  work  injury.  She  and  her  lawyer  need  to \nget  the  notes from Dr. Saer then contact worker’s comp and tell \nthem she wants to re-open her case and change physicians. We are \ngoing to order a new MRI and have her follow up. \n \nThere was a worker’s comp rep present in clinic today, but since \nthis is not technically a worker’s comp visit, we did not speak with \nthe  rep.  The  rep  was  not  in  the  room  with  the  patient  during  the \nvisit. \n \nOrder MRI – Spine was performed. \n \nThe patient presents for imaging results and she is doing about the \nsame with back pain, she can manage as long as she doesn’t do any \nreal activity. She is unsure if workers comp has been reopened but \nthis is all going on from work accident in April 2022. \n \n*** \nTests \nMRI Interpretation Lumbar Spine \n \nMRI Data: \nDate: 04/07/2023 MRI L-spine without gadolinium \n \n\nTreadwell – H208296 \n \n-7- \nMRI   of   the   lumbar   spine   was   obtained,   demonstrating   the \nfollowing   findings:   mild   degenerative   changes,   no   sig   canal \nstenosis or impingement. \n \nImpression/Plan: \n1. Low Back Pain \n \nLocated on the lumbar spine \nAssociated  diagnoses:  Intervertebral  Disc  Degeneration,  Lumbar, \nLeg Pain, and Numbness \n \nPlan: Other \nThere  is  no  surgery  recommended  for  her  low  back,  she  does  still \nhave numbness in her left leg with certain positions. She has been \navoiding those positions, we are going to get EMG/NCV of the left \nand f/u after. We did discuss pain management and trying some of \ntheir  treatments  to  help  with  her  pain.  We  will  get  the  EMG  and \nthen can discuss further options. \n \nPlan: Consult \nI  counseled  the  patient  regarding  the  following  need  to  see  the \nspecialist: \nOther Details: Refer to pain management for eval/treat \nWe discussed the need to see another medical specialist to assist in \nthe current diagnosis and treatment. The patient was advised to call \nthe   office   of   the   specialist   to   set   up   an   appointment   for \nconsultation. Delay in this may lead to poor outcomes. \n \n The  claimant  was  again  seen  by  Dr.  Thomas  on June  7,  2023.  Following  is  a  portion  of \nthat visit note: \nHPI:  This  is  a  45  year  old  female  who  is  following  up  for  Low \nBack  Pain  (low  back  pain,  unspecified)  on  the  lumbar  spine.  She \nwas  seen  on  April  27,  2023,  at  which  time  MRI  Interpretation \nLumbar Spine was performed and \n \nThere  is  no  surgery  recommended  for  her  low  back,  she  does  still \nhave numbness in her left leg with certain positions. She has been \navoiding those positions, we are going to get EMC/NCV of the left \nand f/u after. We did discuss pain management and trying some of \ntheir  treatments  to  help  with  her  pain.  We  will  get  the  EMG  and \nthen can discuss further options. \n \nConsult was performed. \n\nTreadwell – H208296 \n \n-8- \n \nOrder EMG/NCV was performed. \n \nThe   patient   presents   for   EMG   results   and   she   has   left   leg \nnumbness.  This  is  related  to  a  work  accident  April  2022  as  a \nparamedic.  Her  symptoms  are  weakness  and  pain  in  the  low  back \nmore on the left, since January she will have incontinence and the \nleft foot/leg numbness with increased activity. \n \n*** \nImpression/Plan: \n1. Low Back Pain \n \nLocated on the lumbar spine \nAssociated  diagnoses:  Intervertebral  Disc  Degenerations,  Lumbar, \nLeg Pain, and Numbness. \n \nPlan: Other \nThere  is  no  surgery  recommended  for  her  low  back  based  on  the \nMRI  and  the  EMG.  She  does  have  some  mild  left  radicular \nneuropathy. She is unable to do her job as a paramedic and is doing \na light duty job. She will continue her current work status. She is a \nyear  out  from  the  work  accident  and  we  do  feel  her  continued \nsymptoms are related to the work accident. We are going to get an \nFCE to evaluate her long term work status. We will order this and \nf/u after to determine her impairment rating. \n \nPlan: Order Tests. \nLabs: \n46634-2 – Functional capacity assessment (RFC) \n \n On  September  13,  2023,  the  claimant  requested  a  change  of  physician  from  the \nCommission  to  Dr.  Beavers.  That  change  of  physician  was  granted  by  the  Commission  on \nSeptember 22, 2023. \nOn  October  5,  2023,  the  claimant  returned  to  see  her  PCP,  Dr.  Beavers.  Following  is  a \nportion of the medical records from that visit: \nHPI \nLaura presents today from the standpoint to address workman’s \ncomp issues. \n\nTreadwell – H208296 \n \n-9- \nShe  was  injured  in  April  of  2022  in  a  lifting  incident  while \nworking  as  an  EMT.  She  presents  in years  previous  with  left  hip \npain, and there was some question of whether her symptoms were \nradicular  or  not.  At that  time  she  did  undergo  an  MRI  and  in  the \nbody  of  the  interpretation  of  that  MRI  was  noted  that  at  L4-5  she \nhad a small right sided disc protrusion. \nThe  ligamentous  pain  that  she  was  experiencing  in  her  left  hip  at \nthat time resolved. \nFrom 2018 to 2022 I have not had any visits with her where there \nwas any complaint of back pain. \n \nAssessment/Plan \n1. Backache \nVariable in intensity of daily...she has daily pain and takes nsaids \ndaily but still has pain related as a 3-6/10...she is no longer able to \ndo  her  prior  job  as  an  EMT  that  was  significantly  physically \ndemanding...she now is  working  in  the  court  house  as  a  clerical \nposition  which  obviously  does  not  pay  as  well  as  her  EMT \nposition...since the injury occurred on the job in her EMT position \nshe is seeing compensation through workmans compensation...she \nneeds  to  have  a  work  physical  capacity  evaluation...M54.9: \nDorsalgia, unspecified. \n \n On March 1, 2024, Dr. Beavers authored a letter regarding the claimant. Following is the \nbody of that letter: \nI  referred  Laura  Treadwell  to  Dr.  Brad  Thomas  on  February  22, \n2023 for an evaluation of ongoing radicular pain into her left lower \nextremity.   Dr.   Brad   Thomas,   a   board   certified   neurosurgeon \nordered  an  EMG  nerve  conduction  velocity  that  revealed  that  she \nhad  left  proximal  sciatic  neuropathy.  Ms.  Treadwell  was  being \nseen  both  by  me  and  Dr.  Thomas  under  her  health  insurance.  Her \nhealth   insurance   would   not   pay   for   her   continued   treatment \nrecommended by Dr. Thomas. I do feel that referral to Dr. Thomas \nfor  a  radicular  type  pain  with  an  abnormal  MRI  was  appropriate. \nFurther  based  upon  EMG  nerve  conduction  results  I  continue  to \nbelieve  that  Ms.  Treadwell  needs  to  be  able  to  continue  her \ntreatment    with    Dr.    Thomas    and/or    an    equally    qualified \nneurosurgeon/orthopedic spine specialist. \n \nThe claimant has asked the Commission to determine whether she is entitled to additional \nmedical  treatment  in  the  form  of  an  FCE  as  recommended  by  Dr.  Beavers,  or  whether  the \n\nTreadwell – H208296 \n \n-10- \nclaimant  is  entitled  to  the  referral  from  Dr.  Beavers  to  Dr.  Brad  Thomas,  or  a  similar \nneurosurgeon. The claimant has the burden of proving the additional medical treatment she has \nrequested  is  reasonable  and  necessary  medical  treatment. Employers  must  promptly  provide \nmedical  services  which  are  reasonably  necessary  in  connection  with  the  compensable  injuries, \nArk.  Code  Ann.  §11-9-508(a).    However,  injured  employees  have  the  burden  of  proving  by  a \npreponderance of the evidence that medical treatment is reasonably necessary.  Patchell v. Wal-\nMart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31  (2004).    What  constitutes  reasonable  and \nnecessary  medical  treatment  is  a  fact  question  for  the  Commission,  and  the  resolution  of  this \nissue  depends  upon  the  sufficiency  of  the  evidence.   Gansky  v.  Hi-Tech  Engineering,  325  Ark. \n163, 924 S.W.2d 790 (1996). \n The claimant in this matter does continue to work for the respondent but works in a light \nduty, desk  type  position.  Given  the  permanent  restrictions  placed  on  her  by  Dr.  Saer  after  the \nrespondent refused to pay for an FCE, she was unable to return to work in her former profession \nas a paramedic. “I had recommended an FCE but that was not approved. Therefore I think she \nshould  continue  with  light  duty  level  work  with  a  lifting  limit  of  25  pounds,  and  no  repetitive \nbending, twisting or lifting. These restrictions should be considered permanent.” From Dr. Saer’s \nmedical records, it is clear that he placed those restrictions himself without the benefit of an FCE \nbecause the respondent denied the FCE that he had recommended. \n The  claimant  is  clearly  frustrated  by  her  inability  to  receive  an  FCE. Her testimony \nduring cross examination by the respondent attorney shows that frustration as follows: \nQ [BY  MR.  RYBURN]:  And  you  were  released,  as  you \ntestified earlier, with permanent restrictions; correct? \n \nA Yes, sir. \n \n\nTreadwell – H208296 \n \n-11- \nQ Do   you   believe   that   you   can   do   more   than   those \nrestrictions? \n \nA No, sir. \n \nQ  Do  you  believe  that  you  can  do – that  those  restrictions \nshould be removed? \n \nA No, sir. \n \nQ What do you think an FCE will accomplish, then? \n \nA My goal is to be compensated for the wage loss that I have \nincurred because of a documented work comp injury. \n \nQ So in fact, you disagree with that 0 percent and the FCE is \nsimply a way to get a different rating? \n \nA Yes, sir. \n \nQ Okay.  You  understand  that  Dr.  Thomas  stated  that  you – \nthat  is  on  Page  33  of  your  Exhibit – suffered  from  intervertebral \ndisc degeneration? \n \nA Sure. \n \nQ Okay. And you did have a prior low back workers’ comp \ninjury before this one; correct? \n \nA Yes, sir. \n \nQ Do you know what degeneration means? \n \nA Yes, sir. \n \nQ  Do you understand that my client accepted your claim as an \naggression of that preexisting condition? \n \nA No, sir. \n \nQ Do you understand what an FCE is? \n \nA Yes, sir. \n \nQ Okay. And you understand that it is not medical treatment? \n\nTreadwell – H208296 \n \n-12- \n \n MR. WREN: Objection. Your Honor. \n \n THE COURT: Sustained. I will decide. \n \nQ [BY MR. RYBURN]: Can you explain your understanding \nof an FCE. \n \nA To see what I am capable of doing. \n \nQ Okay. And you are currently working? \n \nA Yes, sir. \n \nQ And your job falls under your permanent restrictions? \n \nA Yes, sir. \n \nQ And you don’t think that you can do anything above those \nrestrictions? \n \nA Not full time, no, sir. \n \nQ So if you had an FCE and they said that you could do more \nthan those restrictions, would you return to a heavier duty job? \n \nA I can’t make that decision at this moment. \n \nQ Okay.  But  it  is  your  testimony  and  you  told  me  in  your \ndeposition that you don’t think you can do anything above those \nrestrictions; correct? \n \nA There is a lot of things I am not able to do, yes, sir. \n \nQ So  you  agree  with  the  restrictions,  but  not  the  impairment \nrating? \n \nA Yes, sir. \n \nQ And  Dr.  Thomas  has  not  given  you  an  impairment  rating; \ncorrect? \n \nA Not that I am aware of. \n \n It  is  certain  that  the  claimant  has  a  desire  to  seek  financial  compensation  for  her \n\nTreadwell – H208296 \n \n-13- \ncompensable back injury, as I am certain most every injured worker does. That desire, however, \ndoes  not  change  the  fact  that  the  respondent’s  chosen  orthopedic  surgeon,  Dr.  Saer; the \nclaimant’s PCP, Dr. Beaver; and  a  neurosurgeon,  Dr.  Thomas, who  has  treated  the  claimant, \nhave all recommended an FCE that the respondent has refused to authorize. \n In Gansky,  supra, the  Supreme  Court  of  Arkansas  dealt  with  a  very  similar  case.  The \nclaimant in that matter had some pre-existing back issues, but suffered a compensable injury, as \nis  the  case  at  hand.  The  ALJ  had  ordered  the  respondent  to  provide  the  FCE that  was \nrecommended by his treating physician but was reversed by the Full Commission, which found \nthe FCE was not reasonable and necessary medical treatment for the claimant’s compensable \ninjury. The Arkansas Court of Appeals in a 3-3 decision upheld the Full Commission’s decision. \nThe  Supreme  Court  reversed  the  Court  of  Appeals.  In  the Gansky case  the  doctor  ordered  an \nFCE but refrained from releasing him until it was complete. The respondent then refused to pay \nfor the FCE and a final evaluation by the doctor, who was a neurosurgeon, was never made. The \nCourt believed the Full Commission relied upon physical therapist’s reports as opposed to those \nof the doctor. The Court stated, “Under these circumstances when the treating neurosurgeon has \nprescribed  a  functional  capacity  assessment  and  that  was  not  done  because  Hi-Tech  (the \nrespondent) would not pay for it, we cannot agree with the Commission that additional medical \ntreatment was not reasonable, necessary, or that the healing period had ended. We conclude that \nfair-minded persons, viewing the same evidence, could not decide otherwise.” \n In  the  present  case  there  are  no  physical  therapist  reports,  but  Dr.  Saer,  an  orthopedic \nsurgeon,  ordered  an  FCE  that  was  refused  by  the  respondent.  Then  after  that  refusal,  he  placed \nrestrictions and released the claimant at MMI. Dr. Beavers, the claimant’s PCP, ordered an FCE \nafter  the  claimant  was  released  by  Dr.  Saer.  Finally,  on  June  7,  2023,  Dr.  Thomas,  a \n\nTreadwell – H208296 \n \n-14- \nneurosurgeon   who   has   treated   the   claimant,   recommended   an   FCE. Despite   all   three \nrecommendations, the respondent has refused to provide the FCE. In fact, the respondent makes \nclear in this hearing transcript that it does not believe an FCE is even medical treatment.  \nQ Ms.  Treadwell,  so  far  both  neurosurgeons  that  have  seen \nyou have said that you do not need surgery. Isn’t that true? \n \nA Yes, sir. \n \nQ So no one plans to do any surgery or treatment at this time; \nis that correct? \n \nA Not at this time. \n \nQ And you don’t know of any treatment, medical treatment \nthat you need at this time beyond the FCE? \n \nA I am not aware of any. \n \n MR.  RYBURN:  Okay.  And  just  for  the  record,  I  am  not \nconceding that an FCE is medical treatment. \n \nCertainly,  the Court  in Gansky believed  an  FCE  to  be  medical  treatment.  Here  we  have  three \nmedical  providers,  all  doctors,  all  recommending  an  FCE  for  the  claimant;  two  of  which \nspecialize in the type of compensable back injury the claimant has suffered. \n As  previously  stated,  the Gansky case  is  similar  to  this  case  but  admittedly  there  are \ndifferences, as  in  all  cases.  I  find  that  the  claimant  is  able  to  prove  by  a  preponderance  of  the \nevidence  that  the  FCE  ordered  by  Dr.  Saer,  Dr.  Beavers,  and  Dr.  Thomas  is  reasonable  and \nnecessary medical treatment for the claimant’s compensable back injury. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n\nTreadwell – H208296 \n \n-15- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nJanuary  22,  2024,  and  contained  in  a  Pre-hearing  Order  filed January  23,  2024,  are  hereby \naccepted as fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \nadditional medical treatment in the form of an FCE. \n ORDER \nThe  respondents  in  this  matter  shall  pay  for  the  costs associated  with  the  FCE  that  has \nbeen recommended by the claimant’s current treating physician through a change of physician, \nDr. Beavers. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H208296 LAURA TREADWELL, Employee CLAIMANT POPE COUNTY JUDGE, Employer RESPONDENT AAC RISK MANAGEMENT SERVICES, Carrier RESPONDENT OPINION FILED JUNE 11, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Russellville, Pope County, Arkansas. Clai...","fetched_at":"2026-05-19T22:52:40.091Z","links":{"html":"/opinions/alj-H208296-2024-06-11","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/TREADWELL_LAURA_H208296_20240611.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}